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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Airedale Hospital Trustees v Bland [1992] UKHL 5 (04 February 1993) URL: http://www.bailii.org/uk/cases/UKHL/1992/5.html Cite as: [1993] 2 WLR 316, [1993] 1 All ER 821, [1993] AC 789, [1992] UKHL 5 |
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Parliamentary
Archives,
HL/PO/JU/18/253
Airedale NHS Trust (Respondents)
v.
Bland (acting by his
Guardian ad Litem) (Appellant)
JUDGMENT
Die Jovis 4° Februarii 1993
Upon Report from the Appellate Committee to
whom was
referred the Cause Airedale NHS Trust against Bland
(acting by
his Guardian ad Litem), That the Committee had heard
Counsel as
well on Monday the 14th as on Tuesday the 15th and
Wednesday the
16th days of December last upon the Petition and
Appeal of
Anthony Bland of Airedale General Hospital, Skipton
Road,
Steeton, Keighley, West Yorkshire (a patient acting by
his
Guardian ad Litem the Official Solicitor to the Supreme
Court),
praying that the matter of the Order set forth in the
Schedule
thereto, namely an Order of Her Majesty's Court of Appeal
of the
3rd day of December 1992, might be reviewed before Her
Majesty
the Queen in Her Court of Parliament and that the said
Order
might be reversed, varied or altered or that the Petitioner
might
have such other relief in the premises as to Her Majesty
the
Queen in Her Court of Parliament might seem meet; as upon
the
case of Airedale NHS Trust lodged in answer to the said
Appeal;
and Counsel having been heard as amicus curiae
instructed by the
Treasury Solicitor; and due consideration had
this day of what
was offered on either side in this Cause:
It is Ordered and Adjudged, by
the Lords Spiritual and
Temporal in the Court of Parliament of Her
Majesty the Queen
assembled, That the said Order of the 3rd day of
December 1992
complained of in the said Appeal be, and the same is
hereby,
Affirmed and that the said Petition and Appeal be,
and the same
is hereby, dismissed this House.
Cler: Parliamentor:
Judgment: 4 February 1993
HOUSE OF LORDS
AIREDALE NHS TRUST
(RESPONDENTS)
v.
BLAND
(ACTING BY HIS GUARDIAN ad
litem)
(APPELLANT)
Lord Keith of Kinkel
Lord Goff
of Chieveley
Lord Lowry
Lord Browne-Wilkinson
Lord Mustill
LORD KEITH OF KINKEL
My Lords,
As a result of injuries sustained
in the Hillsborough disaster, Anthony
Bland has for over three
years been in the condition known as persistent
vegetative state
(P.V.S.). It is unnecessary to go into all the details about
the
manifestations of this state which are fully set out in the
judgments of the
courts below. It is sufficient to say that it
arises from the destruction, through
prolonged deprivation of
oxygen, of the cerebral cortex, which has resolved
into a watery
mass. The cortex is that part of the brain which is the seat
of
cognitive function and sensory capacity. Anthony Bland cannot
see, hear or
feel anything. He cannot communicate in any way. The
consciousness which
is the essential feature of individual
personality has departed for ever. On the
other hand the brain
stem, which controls the reflexive functions of the body,
in
particular heartbeat, breathing and digestion, continues to operate.
In the
eyes of the medical world and of the law a person is not
clinically dead so
long as the brain stem retains its function. In
order to maintain Anthony
Bland in his present condition, feeding
and hydration are achieved artificially
by means of a nasogastric
tube and excretionary functions are regulated by a
catheter and by
enemas. The catheter from time to time gives rise to
infections
which have to be dealt with by appropriate medical treatment.
The
undisputed consensus of eminent medical opinion is that there
is no prospect
whatever that Anthony Bland will ever make any
recovery from his present
condition, but that there is every
likelihood that he will maintain his present
state of existence
for many years to come, provided that the medical care
which he is
now receiving is continued.
- 1 -
In that state of affairs the
medical men in charge of Anthony Bland's
case formed the view,
which was supported by his parents, that no useful
purpose was to
be served by continuing that medical care and that it was
appropriate
to stop the artificial feeding and other measures aimed at
prolonging
his existence. Since, however, there were doubts as to whether
this
course might not constitute a criminal offence, the responsible
hospital
authority, the Airedale N.H.S. Trust, sought in the High
Court of Justice
declarations designed to resolve these doubts. In
the result, declarations on
the lines asked for were granted by
judgment of the President of the Family
Division on 19 November
1992. That judgment was affirmed by the Court
of Appeal (Sir
Thomas Bingham M.R., Butler-Sloss and Hoffman L.JJ.) on
9 December
1992. The declarations are in these terms:
"that despite the inability
of the defendant to consent thereto the
plaintiff and the
responsible attending physicians: -
may lawfully discontinue all
life-sustaining treatment and
medical supportive measures
designed to keep the defendant
alive in his existing persistent
vegetative state including the
termination of ventilation
nutrition and hydration by artificial
means; and
may lawfully discontinue and
thereafter need not furnish
medical treatment to the defendant
except for the sole purpose
of enabling him to end his life and
die peacefully with the
greatest dignity and the least of pain
suffering and distress;"
Anthony Bland, by the Official
Solicitor as his guardian ad litem, now
appeals, with leave given
in the Court of Appeal, to your Lordships' House.
At the hearing
of the appeal your Lordships were assisted by submissions
made by
Mr. Anthony Lester Q.C., as amicus curiae instructed by the
Treasury
Solicitor.
The broad issue raised by the
appeal is stated by the parties to be "In
what circumstances,
if ever, can those having a duty to feed an invalid
lawfully stop
doing so?" The immediate issue, however, is whether in
the
particular circumstances of Anthony Bland's case those in
charge of it would
be acting lawfully if they discontinued the
particular measures, including
feeding by nasogastric tube, which
are now being used to maintain Anthony
Bland in his existing
condition.
The first point to make is that it
is unlawful, so as to constitute both
a tort and the crime of
battery, to administer medical treatment to an adult,
who is
conscious and of sound mind, without his consent: In In re F,
(Mental
Patient: Sterilisation) [1990] 2 A.C. 1. Such a person
is completely at liberty
to decline to undergo treatment, even if
the result of his doing so will be that
he will die. This extends
to the situation where the person, in anticipation of
his, through
one cause or another, entering into a condition such as P.V.S.,
-2-
gives clear instructions that in
such event he is not to be given medical care,
including
artificial feeding, designed to keep him alive. The second point
is
that it very commonly occurs that a person, due to accident or
some other
cause, becomes unconscious and is thus not able to give
or withhold consent
to medical treatment. In that situation it is
lawful, under the principle of
necessity, for medical men to apply
such treatment as in their informed
opinion is in the best
interests of the unconscious patient. That is what
happened in the
case of Anthony Bland when he was first dealt with by the
emergency
services and later taken to hospital.
The object of medical treatment
and care is to benefit the patient. It
may do so by taking steps
to prevent the occurrence of illness, or, if an illness
does
occur, by taking steps towards curing it. Where an illness or the
effects
of an injury cannot be cured, then efforts are directed
towards preventing
deterioration or relieving pain and suffering.
In Anthony Bland's case the
first imperative was to prevent him
from dying, as he would certainly have
done in the absence of the
steps that were taken. If he had died, there can be
no doubt that
the cause of this would have been the injuries which he had
suffered.
As it was, the steps taken prevented him from dying, and there
was
instituted the course of treatment and care which still
continues. For a time,
no doubt, there was some hope that he might
recover sufficiently for him to
be able to live a life that had
some meaning. Some patients who have
suffered damage to the
cerebral cortex have, indeed, made a complete
recovery. It all
depends on the degree of damage. But sound medical opinion
takes
the view that if a P.V.S. patient shows no signs of recovery after
six
months, or at most a year, then there is no prospect whatever
of any recovery.
There are techniques available which make it
possible to ascertain the state of
the cerebral cortex, and in
Anthony Bland's case these indicate that, as
mentioned above, it
has degenerated into a mass of watery fluid. The
fundamental
question then comes to be whether continuance of the present
regime
of treatment and care, more than three years after the injuries
that
resulted in the P.V.S., would confer any benefit on Anthony
Bland. It is
argued for the respondents, supported by the amicus
curiae, that his best
interests favour discontinuance. I feel some
doubt about this way of putting
the matter. In In re. F.
(Mental Patient: Sterilisation) [1990] 2 A.C. 1 this
House
held that it would be lawful to sterilise a female mental patient
who
was incapable of giving consent to the procedure. The ground
of the decision
was that sterilisation would be in the patient's
best interests because her life
would be fuller and more agreeable
if she were sterilised than if she were not.
In In re J. (A
Minor) (Wardship: Medical Treatment) [1991] Fam. 33 the
Court
of Appeal held it to be lawful to withhold life saving treatment from
a
very young child in circumstances where the child's life, if
saved, would be
one irredeemably racked by pain and agony. In both
cases it was possible to
make a value judgment as to the
consequences to a sensate being of in the one
case withholding and
in the other case administering the treatment in question.
In the
case of a permanently insensate being, who if continuing to live
would
never experience the slightest actual discomfort, it is
difficult, if not
impossible, to make any relevant comparison
between continued existence and
-3-
the absence of it. It is, however,
perhaps permissible to say that to an
individual with no cognitive
capacity whatever, and no prospect of ever
recovering any such
capacity in this world, it must be a matter of complete
indifference
whether he lives or dies.
Where one individual has assumed
responsibility for the care of
another who cannot look after
himself or herself, whether as a medical
practitioner or
otherwise, that responsibility cannot lawfully be shed
unless
arrangements are made for the responsibility to be taken
over by someone
else. Thus a person having charge of a baby who
fails to feed it, so that it
dies, will be guilty at least of
manslaughter. The same is true of one having
charge of an adult
who is frail and cannot look after herself: Reg. v. Stone
[1977]
Q.B. 354. It was argued for the guardian ad litem, by analogy
with
that case, that here the doctors in charge of Anthony Bland
had a continuing
duty to feed him by means of the nasogastric tube
and that if they failed to
carry out that duty they were guilty of
manslaughter, if not murder. This was
coupled with the argument
that feeding by means of the nasogastric tube was
not medical
treatment at all, but simply feeding indistinguishable from
feeding
by normal means. As regards this latter argument, I am of
opinion that
regard should be had to the whole regime, including
the artificial feeding,
which at present keeps Anthony Bland
alive. That regime amounts to medical
treatment and care, and it
is incorrect to direct attention exclusively to the fact
that
nourishment is being provided. In any event, the administration
of
nourishment by the means adopted involves the application of a
medical
technique. But it is, of course, true that in general it
would not be lawful for
a medical practitioner who assumed
responsibility for the care of an
unconscious patient simply to
give up treatment in circumstances where
continuance of it would
confer some benefit on the patient. On the other hand
a medical
practitioner is under no duty to continue to treat such a
patient
where a large body of informed and responsible medical
opinion is to the
effect that no benefit at all would be conferred
by continuance. Existence in
a vegetative state with no prospect
of recovery is by that opinion regarded as
not being a benefit,
and that, if not unarguably correct, at least forms a proper
basis
for the decision to discontinue treatment and care: Bolam v.
Friern
Hospital Management Committee [1957] 1 W.L.R. 582.
Given that existence in the
persistent vegetative state is not a benefit
to the patient, it
remains to consider whether the principle of the sanctity of
life,
which it is the concern of the State, and the judiciary as one of the
arms
of the State, to maintain, requires this House to hold that
the judgment of the
Court of Appeal was incorrect. In my opinion
it does not. The principle is
not an absolute one. It does not
compel a medical practitioner on pain of
criminal sanctions to
treat a patient, who will die if he does not, contrary to
the
express wishes of the patient. It does not authorise forcible feeding
of
prisoners on hunger strike. It does not compel the temporary
keeping alive
of patients who are terminally ill where to do so
would merely prolong their
suffering. On the other hand it forbids
the taking of active measures to cut
short the life of a
terminally ill patient. In my judgment it does no violence
-4-
to the principle to hold that it
is lawful to cease to give medical treatment and
care to a P.V.S.
patient who has been in that state for over three years,
considering
that to do so involves invasive manipulation of the patient's body
to
which he has not consented and which confers no benefit upon him.
Although this case falls to be
decided by the law of England, it is of
some comfort to observe
that in other common law jurisdictions, particularly
in the United
States where there are many cases on the subject, the courts
have
with near unanimity concluded that it is not unlawful to
discontinue
medical treatment and care, including artificial
feeding, of P.V.S. patients and
others in similar conditions.
The decision whether or not the
continued treatment and care of a
P.V.S. patient confers any
benefit on him is essentially one for the
practitioners in charge
of his case. The question is whether any decision that
it does not
and that the treatment and care should therefore be
discontinued
should as a matter of routine be brought before the
Family Division for
endorsement or the reverse. The view taken by
the President of the Family
Division and the Court of Appeal was
that it should, at least for the time
being and until a body of
experience and practice has been built up which
might obviate the
need for application in every case. As the Master of the
Rolls
said, this would be in the interests of the protection of patients,
the
protection of doctors, the reassurance of the patients'
families and the
reassurance of the public. I respectfully agree
that these considerations render
desirable the practice of
application.
My Lords, for these reasons, which
are substantially the same as those
set out in the speech to be
delivered by my noble and learned friend Lord
Goff of Chieveley,
with which I agree, I would dismiss the appeal.
LORD GOFF OF CHIEVELEY
My Lords,
The facts of the present case are
not in dispute. They are fully set out
in the judgment of Sir
Stephen Brown P at first instance; they have been
admirably
summarised in the judgment of Sir Thomas Bingham M.R. in the
Court
of Appeal; and they have been summarised yet again in the
agreed
statement of facts and issues prepared by counsel for the
assistance of the
Appellate Committee of your Lordships' House.
They reveal a tragic state of
affairs, which has evoked great
sympathy both for Anthony Bland himself,
and for his devoted
family, and great respect for all those who have been
responsible
for his medical treatment and care since he was admitted to
hospital
following the terrible injuries which he suffered at Hillsborough
in
April 1989. For present purposes, I propose simply to adopt the
sympathetic
-5-
and economical summary of the
Master of the Rolls which, for convenience
of reference, I will
now incorporate into this opinion.
"Mr Anthony David Bland, then
aged 17 , went to the Hillsborough
Ground on 15 April 1989 to
support the Liverpool Football Club. In
the course of the disaster
which occurred on that day, his lungs were
crushed and punctured
and the supply of oxygen to his brain was
interrupted. As a
result, he suffered catastrophic and irreversible
damage to the
higher centres of the brain. The condition from which
he suffers,
and has suffered since April 1989, is known as a
persistent
vegetative state (abbreviated to P.V.S.).
"P.V.S. is a recognised
medical condition quite distinct from other
conditions sometimes
known as "irreversible coma", "the Guillain-
Barre
syndrome", "the locked-in syndrome" and "brain
death". Its
distinguishing characteristics are that the brain
stem remains alive and
functioning while the cortex of the brain
loses its function and activity.
Thus the P.V.S. patient continues
to breathe unaided and his digestion
continues to function. But
although his eyes are open, he cannot see.
He cannot hear.
Although capable of reflex movement, particularly in
response to
painful stimuli, the patient is incapable of voluntary
movement
and can feel no pain. He cannot taste or smell. He cannot
speak or
communicate in any way. He has no cognitive function and
can thus
feel no emotion, whether pleasure or distress. The absence
of
cerebral function is not a matter of surmise; it can be
scientifically
demonstrated. The space which the brain should
occupy is full of
watery fluid.
"The medical witnesses in
this case include some of the outstanding
authorities in the
country on this condition. All are agreed on the
diagnosis. All
are agreed on the prognosis also: there is no hope of
any
improvement or recovery. One witness of great experience
describe
Mr Bland as the worst P.V.S. case he had every seen.
"Mr Bland lies in bed in the
Airedale General Hospital, his eyes open,
his mind vacant, his
limbs crooked and taut. He cannot swallow, and
so cannot be
spoon-fed without a high risk that food will be inhaled
into the
lung. He is fed by means of a tube, threaded through the nose
and
down into the stomach, through which liquified food is
mechanically
pumped. His bowels are evacuated by enema. His
bladder is drained
by catheter. He has been subject to repeated bouts
of infection
affecting his urinary tract and chest, which have been
treated
with antibiotics. Drugs have also been administered to
reduce
salivation, to reduce muscle tone and severe sweating and
to encourage
gastric emptying. A tracheostomy tube has been
inserted and
removed. Urino-genitary problems have required
surgical
intervention.
- 6 -
"A patient in this condition
requires very skilled nursing and close
medical attention if he is
to survive. The Airedale National Health
Service Trust have, it is
agreed, provided both to Mr Bland.
Introduction of the nasogastric
tube is itself a task of some delicacy
even in an insensate
patient. Thereafter it must be monitored to ensure
it has not
become dislodged and to control inflammation, irritation
and
infection to which it may give arise. The catheter must be
monitored:
it may cause infection (and has repeatedly done so); it
has had to be
re-sited, in an operation performed without
anaesthetic. The mouth
and other parts of the body must be
constantly tended. The patient
must be repeatedly moved to avoid
pressure sores. Without skilled
nursing and close medical
attention a P.V.S. patient will quickly
succumb to infection. With
such care, a young and otherwise healthy
patient may live for many
years.
"At no time before the
disaster did Mr Bland give any indication of his
wishes should he
find himself in such a condition. It is not a topic
most
adolescents address. After careful thought his family agreed that
the
feeding tube should be removed and felt that this was what Mr
Bland
would have wanted. His father said of his son in evidence:
'He
certainly wouldn't want to be left like that'. He could see
no
advantage at all in continuation of the current treatment. He
was not
cross-examined. It was accordingly with the concurrence of
Mr
Bland's family, as well as the consultant in charge of his case
and the
support of two independent doctors, that the Airedale
N.H.S. Trust as
plaintiff in this action applied to the Family
Division of the High Court
for declarations that they might
'(1) . . . lawfully discontinue
all life-sustaining treatment and
medical support measures
designed to keep AB [Mr Bland]
alive in his existing persistent
vegetative state including the
termination of ventilation
nutrition and hydration by artificial
means; and
(2) ... lawfully discontinue and
thereafter need not furnish
medical treatment to AB except for the
sole purpose of
enabling AB to end his life and die peacefully
with the greatest
dignity and the least of pain suffering and
distress.'
"After a hearing in which he
was assisted by an amicus curiae
instructed by the Attorney
General, the President of the Family
Division made these
declarations (subject to a minor change of
wording) on 19 November
1992. He declined to make further
declarations which were also
sought."
The Official Solicitor, acting on
behalf of Anthony Bland, appealed
against that decision to the
Court of Appeal, who dismissed the appeal. Now,
-7-
with the leave of the Court of
Appeal, the Official Solicitor has appealed to
your Lordships'
House.
In so acting, the Official
Solicitor has ensured that all relevant matters
of fact and law
are properly investigated and scrutinised before any
irrevocable
decision is taken affecting Anthony Bland, for whom he acts
as
guardian ad litem. This function was performed by Mr James
Munby, Q.C.,
who appeared before your Lordships as he did before
the courts below; and
he made submissions in the form of a series
of propositions any of which, if
accepted, would preclude the
grant of the declarations granted by the learned
President. Like
the courts below, I have come to the conclusion that I am
unable
to accept Mr Munby's submissions; but I have nevertheless found
them
to be of great assistance in that they have compelled me to think
more
deeply about the applicable principles of law and, I hope, to
formulate those
principles more accurately. Your Lordships were
also fortunate to have the
assistance of Mr Anthony Lester, Q.C.,
appearing as amicus curiae, instructed
by the Treasury Solicitor,
and of the thoughtful argument of Mr Francis Q.C.,
for the
respondents.
On one point there was no
disagreement between counsel appearing
before your Lordships. This
was that proceedings for declaratory relief of the
kind considered
by this House in In re F (Mental Patient: Sterilisation) [1990]
2
A.C. I provided the most appropriate means by which
authoritative
guidance could be provided for the respondents to
the appeal, the Airedale
N.H.S. Trust, and for Dr. Howe who has
Anthony Bland in his care, whose
wish it is, in agreement with
Anthony's parents, to discontinue the artificial
feeding of
Anthony, with the inevitable result that, within one or two weeks,
he
will die. There has therefore been no contested argument about
the
appropriateness of the declaratory remedy in cases such as
these, which are
in fact concerned with the question whether in
the particular circumstances
those who discontinue life support
(here artificial feeding) will commit a civil
wrong or a criminal
offence. In In re F, the question arose whether it would
be
lawful for doctors to sterilise an adult woman of unsound mind. In
that
case, this House was deeply concerned to discover that it was
common ground
between the parties that, in the case of adult
persons of unsound mind, the
parens patriae jurisdiction of the
courts had been revoked with the effect that
the courts could no
longer exercise their jurisdiction to give consent on behalf
of
such persons. On that occasion Mr Munby, who there as here
was
instructed by the Official Solicitor, was invited to assist
this House by
advancing such arguments as could be advanced that
the jurisdiction had not
been abolished. At the end of the
argument, your Lordships' House came
reluctantly to the conclusion
that the jurisdiction no longer existed; but,
dismayed by the
possibility that the courts might be powerless to provide
the
necessary guidance to the medical profession in that case,
this House had
recourse to declaratory relief for that purpose.
Speaking for myself, I remain
of the opinion that this conclusion
was entirely justified. Of course, I
recognise that strong
warnings have been given against the civil courts
usurping the
function of the criminal courts, and it has been authoritatively
-8-
stated that a declaration as to
the lawfulness or otherwise of future conduct is
"no bar to a
criminal prosecution, no matter the authority of the court
which
grants it": see Imperial Tobacco Ltd. v. Attorney
General [1981] A.C.718,
741, per Viscount Dilhorne, and
see also p. 752, per Lord Lane. But it is
plain that the
jurisdiction exists to grant such a declaration, and on occasion
that
jurisdiction has been exercised, as for example by your Lordships'
House
in Royal College of Nursing of the United Kingdom v.
Department of Health
and Social Security [1981] A.C. 800. It
would, in my opinion, be a
deplorable state of affairs if no
authoritative guidance could be given to the
medical profession in
a case such as the present, so that a doctor would be
compelled
either to act contrary to the principles of medical ethics
established
by his professional body or to risk a prosecution for
murder. As Compton J.
said in Barber v. Superior Court of State
of California (1983) 195 Cal. Rptr.
484, 486 (1983), ... "a
murder prosecution is a poor way to design an
ethical and moral
code for doctors who are faced with decisions concerning
the use
of costly and extraordinary 'life support' equipment". In
practice,
authoritative guidance in circumstances such as these
should in normal
circumstances inhibit prosecution or, if
(contrary to all expectation) criminal
proceedings were launched,
justify the Attorney General in entering a nolle
prosequi. In the
present case, it is to be remembered that an amicus curiae
has
been instructed by the Treasury Solicitor; yet no representations
have
been made on behalf of the Attorney General that declaratory
relief is here
inappropriate. In expressing this opinion, I draw
comfort from the fact that
declaratory rulings have been employed
for the same purpose in other
common law jurisdictions, such as
the United States of America (in a number
of cases, of which the
most recent appears to be Re Gardner 534 A 2d. 947,
949
(1987)); New Zealand (Re J.H.L. (unreported) 13 August,
1992
transcript pp. 10, 12, 16, 39-40, per Thomas J., to
whom submissions had
been addressed upon the point); and South
Africa (Clarke v. Hurst
(unreported), 30 July 1992, Supreme
Court of South Africa, Durban and
Coast Local Division, per
Thirion J. transcript pp. 8-16, 86).
The central issue in the present
case has been aptly stated by the
Master of the Rolls to be
whether artificial feeding and antibiotic drugs may
lawfully be
withheld from an insensate patient with no hope of recovery when
it
is known that if that is done the patient will shortly thereafter
die. The
Court of Appeal, like the President, answered this
question generally in the
affirmative, and (in the declarations
made or approved by them) specifically
also in the affirmative in
relation to Anthony Bland. I find myself to be in
agreement with
the conclusions so reached by all the judges below,
substantially
for the reasons given by them. But the matter is of such
importance
that I propose to express my reasons in my own words.
I start with the simple fact that,
in law, Anthony is still alive. It is
true that his condition is
such that it can be described as a living death; but he
is
nevertheless still alive. This is because, as a result of
developments in
modern medical technology, doctors no longer
associate death exclusively with
breathing and heart beat, and it
has come to be accepted that death occurs
-9-
when the brain, and in particular
the brain stem, has been destroyed (see
Professor Ian Kennedy's
Paper entitled "Switching off Life Support Machines:
The
Legal Implications" reprinted in Treat Me Right, Essays
in Medical Law
and Ethics, (1988)), especially at pp. 351-2,
and the material there cited).
There has been no dispute on this
point in the present case, and it is
unnecessary for me to
consider it further. The evidence is that Anthony's
brain stem is
still alive and functioning and it follows that, in the present
state
of medical science, he is still alive and should be so
regarded as a matter of
law.
It is on this basis that I turn to
the applicable principles of law. Here,
the fundamental principle
is the principle of the sanctity of human life - a
principle long
recognised not only in our own society but also in most, if not
all,
civilised societies throughout the modern world, as is indeed
evidenced by
its recognition both in article 2 of the European
Convention of Human Rights,
and in article 6 of the International
Covenant of Civil and Political Rights.
But this principle, fundamental
though it is, is not absolute. Indeed
there are circumstances in
which it is lawful to take another man's life, for
example by a
lawful act of self-defence, or (in the days when capital
punishment
was acceptable in our society) by lawful execution. We are
not
however concerned with cases such as these. We are concerned
with
circumstances in which it may be lawful to withhold from a
patient medical
treatment or care by means of which his life may
be prolonged. But here too
there is no absolute rule that the
patient's life must be prolonged by such
treatment or care, if
available, regardless of the circumstances.
First, it is established that the
principle of self-determination requires
that respect must be
given to the wishes of the patient, so that if an adult
patient of
sound mind refuses, however unreasonably, to consent to treatment
or
care by which his life would or might be prolonged, the doctors
responsible
for his care must give effect to his wishes, even
though they do not consider
it to be in his best interests to do
so (see Schloendorff v. Society of New York
Hospital 105
N.E. 92, 93, per Cardozo J. (1914); S. v. McC. (Orse S.) and
M
(D.S. Intervene); W v. W [1972] A.C. 24, 43, per Lord
Reid; and
Sidaway v. Board of Governors of the Bethlem Royal
Hospital and the
Maudsley Hospital [1985] A.C. 871, 882, per
Lord Scarman). To this extent,
the principle of the sanctity of
human life must yield to the principle of self-
determination (see
Court of Appeal Transcript in the present case, at p. 38F
per
Hoffmann L.J.), and, for present purposes perhaps more important,
the
doctor's duty to act in the best interests of his patient must
likewise be
qualified. On this basis, it has been held that a
patient of sound mind may,
if properly informed, require that life
support should be discontinued: see
Nancy B. v. Hotel
Dieu de Quebec (1992) 86 D.L.R. (4th) 385. Moreover
the same
principle applies where the patient's refusal to give his consent
has
been expressed at an earlier date, before he became
unconscious or otherwise
incapable of communicating it; though in
such circumstances especial care
-10-
may be necessary to ensure that
the prior refusal of consent is still properly
to be regarded as
applicable in the circumstances which have subsequently
occurred
(see, e.g. In re T. (Adult: Refusal of treatment) [1992] 3
W.L.R.
782). I wish to add that, in cases of this kind, there is
no question of the
patient having committed suicide, nor therefore
of the doctor having aided or
abetted him in doing so. It is
simply that the patient has, as he is entitled to
do, declined to
consent to treatment which might or would have the effect
of
prolonging his life, and the doctor has, in accordance with his
duty, complied
with his patient's wishes.
But in many cases not only may the
patient be in no condition to be
able to say whether or not he
consents to the relevant treatment or care, but
also he may have
given no prior indication of his wishes with regard to it. In
the
case of a child who is a ward of court, the court itself will decide
whether
medical treatment should be provided in the child's best
interests, taking into
account medical opinion. But the court
cannot give its consent on behalf of
an adult patient who is
incapable of himself deciding whether or not to consent
to
treatment. I am of the opinion that there is nevertheless no
absolute
obligation upon the doctor who has the patient in his
care to prolong his life,
regardless of the circumstances. Indeed,
it would be most startling, and could
lead to the most adverse and
cruel effects upon the patient, if any such
absolute rule were
held to exist. It is scarcely consistent with the primacy
given to
the principle of self-determination in those cases in which the
patient
of sound mind has declined to give his consent, that the
law should provide
no means of enabling treatment to be withheld
in appropriate circumstances
where the patient is in no condition
to indicate, if that was his wish, that he
did not consent to it.
The point was put forcibly in the judgment of the
Supreme Judicial
Court of Massachusetts in Superintendent of Belchertown
State
School v. Saikewicz (1977) 370 N.E. 2d. 417, 428, as
follows:
"To presume that the
incompetent person must always be subjected to
what many rational
and intelligent persons may decline is to
downgrade the status of
the incompetent person by placing a lesser
value on his intrinsic
human worth and vitality."
I must however stress, at this
point, that the law draws a crucial
distinction between cases in
which a doctor decides not to provide, or to
continue to provide,
for his patient treatment or care which could or might
prolong his
life, and those in which he decides, for example by administering
a
lethal drug, actively to bring his patient's life to an end. As I
have already
indicated, the former may be lawful, either because
the doctor is giving effect
to his patient's wishes by withholding
the treatment or care, or even in certain
circumstances in which
(on principles which I shall describe) the patient is
incapacitated
from stating whether or not he gives his consent. But it is
not
lawful for a doctor to administer a drug to his patient to
bring about his death,
even though that course is prompted by a
humanitarian desire to end his
suffering, however great that
suffering may be: see Reg. v. Cox
(Unreported),
Ognall J., Winchester Crown Court, 18 September 1992. So
-11-
to act is to cross the Rubicon
which runs between on the one hand the care of
the living patient
and on the other hand euthanasia - actively causing his death
to
avoid or to end his suffering. Euthanasia is not lawful at common
law. It
is of course well known that there are many responsible
members of our
society who believe that euthanasia should be made
lawful; but that result
could, I believe, only be achieved by
legislation which expresses the
democratic will that so
fundamental a change should be made in our law, and
can, if
enacted, ensure that such legalised killing can only be carried
out
subject to appropriate supervision and control. It is true
that the drawing of
this distinction may lead to a charge of
hypocrisy; because it can be asked
why, if the doctor, by
discontinuing treatment, is entitled in consequence to
let his
patient die, it should not be lawful to put him out of his misery
straight
away, in a more humane manner, by a lethal injection,
rather than let him
linger on in pain until he dies. But the law
does not feel able to authorise
euthanasia, even in circumstances
such as these; for once euthanasia is
recognised as lawful in
these circumstances, it is difficult to see any logical
basis for
excluding it in others.
At the heart of this distinction
lies a theoretical question. Why is it
that the doctor who gives
his patient a lethal injection which kills him commits
an unlawful
act and indeed is guilty of murder, whereas a doctor who,
by
discontinuing life support, allows his patient to die, may not
act unlawfully -
and will not do so, if he commits no breach of
duty to his patient? Professor
Glanville Williams has suggested
(see his Textbook of Criminal Law, 2nd ed.,
p. 282) that
the reason is that what the doctor does when he switches off a
life
support machine 'is in substance not an act but an omission
to struggle, and
that 'the omission is not a breach of duty by the
doctor because he is not
obliged to continue in a hopeless case'.
I agree that the doctor's conduct
in discontinuing life support can
properly be categorised as an
omission. It is true that it may be difficult to
describe what the
doctor actually does as an omission, for example where he
takes
some positive step to bring the life support to an end.
But
discontinuation of life support is, for present purposes, no
different from not
initiating life support in the first place. In
each case, the doctor is simply
allowing his patient to die in the
sense that he is desisting from taking a step
which might, in
certain circumstances, prevent his patient from dying as a
result
of his pre-existing condition; and as a matter of general principle
an
omission such as this will not be unlawful unless it
constitutes a breach of
duty to the patient. I also agree that the
doctor's conduct is to be
differentiated from that of, for
example, an interloper who maliciously
switches off a life support
machine because, although the interloper may
perform exactly the
same act as the doctor who discontinues life support, his
doing so
constitutes interference with the life-prolonging treatment then
being
administered by the doctor. Accordingly, whereas the doctor,
in discontinuing
life support, is simply allowing his patient to
die of his pre-existing condition,
the interloper is actively
intervening to stop the doctor from prolonging the
patient's life,
and such conduct cannot possibly be categorised as an omission.
-12-
The distinction appears,
therefore, to be useful in the present context
in that it can be
invoked to explain how discontinuance of life support can
be
differentiated from ending a patient's life by a lethal
injection. But in the end
the reason for that difference is that,
whereas the law considers that
discontinuance of life support may
be consistent with the doctor's duty to care
for his patient, it
does not, for reasons of policy, consider that it forms any
part
of his duty to give his patient a lethal injection to put him out of
his
agony.
I return to the patient who,
because for example he is of unsound mind
or has been rendered
unconscious by accident or by illness, is incapable of
stating
whether or not he consents to treatment or care. In
such
circumstances, it is now established that a doctor may
lawfully treat such a
patient if he acts in his best interests,
and indeed that, if the patient is already
in his care, he is
under a duty so to treat him: see In re F [1990] 2 A.C. 1,
in
which the legal principles governing treatment in such circumstances
were
stated by this House. For my part I can see no reason why, as
a matter of
principle, a decision by a doctor whether or not to
initiate, or to continue to
provide, treatment or care which could
or might have the effect of prolonging
such a patient's life,
should not be governed by the same fundamental
principle. Of
course, in the great majority of cases, the best interests of
the
patient are likely to require that treatment of this kind, if
available, should be
given to a patient. But this may not always
be so. To take a simple example
given by Thomas J. in Re J.H.L.
(Unreported) (High Court of New Zealand)
13 August 1992, at p.
35), to whose judgment in that case I wish to pay
tribute, it
cannot be right that a doctor, who has under his care a
patient
suffering painfully from terminal cancer, should be under
an absolute
obligation to perform upon him major surgery to abate
another condition
which, if unabated, would or might shorten his
life still further. The doctor
who is caring for such a patient
cannot, in my opinion, be under an absolute
obligation to prolong
his life by any means available to him, regardless of the
quality
of the patient's life. Common humanity requires otherwise, as
do
medical ethics and good medical practice accepted in this
country and
overseas. As I see it, the doctor's decision whether
or not to take any such
step must (subject to his patient's
ability to give or withhold his consent) be
made in the best
interests of the patient. It is this principle too which, in
my
opinion, underlies the established rule that a doctor may, when
caring for a
patient who is, for example, dying of cancer,
lawfully administer painkilling
drugs despite the fact that he
knows that an incidental effect of that application
will be to
abbreviate the patient's life. Such a decision may properly be
made
as part of the care of the living patient, in his best
interests; and, on this
basis, the treatment will be lawful.
Moreover, where the doctor's treatment
of his patient is lawful,
the patient's death will be regarded in law as
exclusively caused
by the injury or disease to which his condition is
attributable.
-13-
It is of course the development of
modern medical technology, and in
particular the development of
life support systems, which has rendered cases
such as the present
so much more relevant than in the past. Even so, where
(for
example) a patient is brought into hospital in such a condition
that,
without the benefit of a life support system, he will not
continue to live, the
decision has to be made whether or not to
give him that benefit, if available.
That decision can only be
made in the best interests of the patient. No doubt,
his best
interests will ordinarily require that he should be placed on a
life
support system as soon as necessary, if only to make an
accurate assessment
of his condition and a prognosis for the
future. But if he neither recovers
sufficiently to be taken off it
nor dies, the question will ultimately arise
whether he should be
kept on it indefinitely. As I see it, that question
(assuming the
continued availability of the system) can only be answered
by
reference to the best interests of the patient himself, having
regard to
established medical practice. Indeed, if the
justification for treating a patient
who lacks the capacity to
consent lies in the fact that the treatment is provided
in his
best interests, it must follow that the treatment may, and
indeed
ultimately should, be discontinued where it is no longer in
his best interests
to provide it. The question which lies at the
heart of the present case is, as
I see it, whether on that
principle the doctors responsible for the treatment and
care of
Anthony Bland can justifiably discontinue the process of
artificial
feeding upon which the prolongation of his life
depends.
It is crucial for the
understanding of this question that the question
itself should be
correctly formulated. The question is not whether the doctor
should
take a course which will kill his patient, or even take a course
which
has the effect of accelerating his death. The question is
whether the doctor
should or should not continue to provide his
patient with medical treatment or
care which, if continued, will
prolong his patient's life. The question is
sometimes put in
striking or emotional terms, which can be misleading. For
example,
in the case of a life support system, it is sometimes asked: Should
a
doctor be entitled to switch it off, or to pull the plug? And then it
is asked:
Can it be in the best interests of the patient that a
doctor should be able to
switch the life support system off, when
this will inevitably result in the
patient's death? Such an
approach has rightly been criticised as misleading,
for example by
Professor Ian Kennedy (in his paper in Treat Me Right, Essays
in
Medical Law and Ethics (1988), and by Thomas J. in Re J.H.L.
at pp. 21-
22. This is because the question is not whether it
is in the best interests of the
patient that he should die. The
question is whether it is in the best interests
of the patient
that his life should be prolonged by the continuance of this form
of
medical treatment or care.
The correct formulation of the
question is of particular importance in
a case such as the
present, where the patient is totally unconscious and where
there
is no hope whatsoever of any amelioration of his condition.
In
circumstances such as these, it may be difficult to say that it
is in his best
interests that the treatment should be ended. But
if the question is asked, as
in my opinion it should be, whether
it is in his best interests that treatment
- 14-
which has the effect of
artificially prolonging his life should be continued, that
question
can sensibly be answered to the effect that it is not in his
best
interests to do so.
Even so, a distinction may be
drawn between (1) cases in which,
having regard to all the
circumstances (including, for example, the intrusive
nature of the
treatment, the hazards involved in it, and the very poor quality
of
the life which may be prolonged for the patient if the treatment
is
successful), it may be judged not to be in the best interests
of the patient to
initiate or continue life-prolonging treatment,
and (2) cases such as the present
in which, so far as the living
patient is concerned, the treatment is of no
benefit to him
because he is totally unconscious and there is no prospect of
any
improvement in his condition. In both classes of case, the
decision
whether or not to withhold treatment must be made in the
best interests of the
patient. In the first class, however, the
decision has to be made by weighing
the relevant considerations.
For example, in In re J. (A Minor) (Wardship:
Medical
Treatment) [1991] Fam. 33, the approach to be adopted in that
case
was stated, at p. 55, by Taylor L.J. as follows:
"I consider the correct
approach is for the court to judge the quality of
life the child
would have to endure if given the treatment and decide
whether in
all the circumstances such a life would be so afflicted as to
be
intolerable to that child."
With this class of case, however,
your Lordships are not directly concerned
in the present case; and
though I do not wish to be understood to be casting
any doubt upon
any of the reported cases on the subject, nevertheless I must
record
that argument was not directed specifically towards these cases, and
for
that reason I do not intend to express any opinion about the
precise principles
applicable in relation to them.
By contrast, in the latter class
of case, of which the present case
provides an example, there is
in reality no weighing operation to be
performed. Here the
condition of the patient, who is totally unconscious and
in whose
condition there is no prospect of any improvement, is such that
life-
prolonging treatment is properly regarded as being, in
medical terms, useless.
As the Master of the Rolls pointed out in
the present case, medical treatment
or care may be provided for a
number of different purposes. It may be
provided, for example, as
an aid to diagnosis; for the treatment of physical
or mental
injury or illness; to alleviate pain or distress, or to make
the
patient's condition more tolerable. Such purposes may include
prolonging the
patient's life, for example to enable him to
survive during diagnosis and
treatment. But for my part I cannot
see that medical treatment is appropriate
or requisite simply to
prolong a patient's life, when such treatment has no
therapeutic
purpose of any kind, as where it is futile because the patient
is
unconscious and there is no prospect of any improvement in his
condition.
It is reasonable also that account should be taken of
the invasiveness of the
treatment and of the indignity to which,
as the present case shows, a person
- 15 -
has to be subjected if his life is
prolonged by artificial means, which must
cause considerable
distress to his family - a distress which reflects not only
their
own feelings but their perception of the situation of their relative
who is
being kept alive. But in the end, in a case such as the
present, it is the futility
of the treatment which justifies its
termination. I do not consider that, in
circumstances such as
these, a doctor is required to initiate or to continue
life-
prolonging treatment or care in the best interests of his
patient. It follows that
no such duty rests upon the respondents,
or upon Dr Howe, in the case of
Anthony Bland, whose condition is
in reality no more than a living death, and
for whom such
treatment or care would, in medical terms, be futile.
In the present case, it is
proposed that the doctors should be entitled
to discontinue both
the artificial feeding of Anthony, and the use of
antibiotics. It
is plain from the evidence that Anthony, in his present
condition,
is very prone to infection and that, over some necessarily
uncertain
but not very long period of time, he will succumb to
infection which, if
unchecked, will spread and cause his death.
But the effect of discontinuing
the artificial feeding will be
that he will inevitably die within one or two
weeks.
Objection can be made to the
latter course of action on the ground that
Anthony will thereby be
starved to death, and that this would constitute a
breach of the
duty to feed him which must form an essential part of the duty
which
every person owes to another in his care. But here again it is
necessary
to analyse precisely what this means in the case of
Anthony. Anthony is not
merely incapable of feeding himself. He is
incapable of swallowing, and
therefore of eating or drinking in
the normal sense of those words. There is
overwhelming evidence
that, in the medical profession, artificial feeding is
regarded as
a form of medical treatment; and even if it is not strictly
medical
treatment, it must form part of the medical care of the
patient. Indeed, the
function of artificial feeding in the case of
Anthony, by means of a nasogastric
tube, is to provide a form of
life support analogous to that provided by a
ventilator which
artificially breathes air in and out of the lungs of a
patient
incapable of breathing normally, thereby enabling oxygen
to reach the
bloodstream. The same principles must apply in either
case when the question
is asked whether the doctor in charge may
lawfully discontinue the life-
sustaining treatment or care; and
if in either case the treatment is futile in the
sense I have
described, it can properly be concluded that it is no longer in
the
best interests of the patient to continue it. It is true that,
in the case of
discontinuance of artificial feeding, it can be
said that the patient will as a
result starve to death; and this
may bring before our eyes the vision of an
ordinary person slowly
dying of hunger, and suffering all the pain and distress
associated
with such a death. But here it is clear from the evidence that
no
such pain or distress will be suffered by Anthony, who can feel
nothing at all.
Furthermore, we are told that the outward symptoms
of dying in such a way,
which might otherwise cause distress to
the nurses who care for him or to
members of his family who visit
him, can be suppressed by means of
sedatives. In these
circumstances, I can see no ground in the present case for
- 16 -
refusing the declarations applied
for simply because the course of action
proposed involves the
discontinuance of artificial feeding.
In In re F [1990] 2 A.C. 1
it was stated that, where a doctor provides
treatment for a person
who is incapacitated from saying whether or not he
consents to it,
the doctor must, when deciding on the form of treatment, act
in
accordance with a responsible and competent body of relevant
professional
opinion, on the principles set down in Bolam v.
Friern Hospital Management
Committee [1957] 1 W.L.R. 582. In
my opinion, this principle must equally
be applicable to decisions
to initiate, or to discontinue, life support, as it is to
other
forms of treatment. However, in a matter of such importance
and
sensitivity as discontinuance of life support, it is to be
expected that guidance
will be provided for the profession; and,
on the evidence in the present case,
such guidance is for a case
such as the present to be found in a Discussion
Paper on Treatment
of Patients in Persistent Vegetative State, issued in
September
1992 by the Medical Ethics Committee of the British
Medical
Association. Anybody reading this substantial paper will
discover for himself
the great care with which this topic is being
considered by the profession. Mr
Francis, for the respondents,
drew to the attention of the Appellate Committee
four safeguards
in particular which, in the committee's opinion, should be
observed
before discontinuing life support for such patients. They are:
(1) Every effort should be made at
rehabilitation for at least six
months after the injury; (2) The
diagnosis of irreversible PVS should not be
considered confirmed
until at least twelve months after the injury, with the
effect
that any decision to withhold life-prolonging treatment will be
delayed
for that period; (3) The diagnosis should be agreed by two
other independent
doctors; and (4) Generally, the wishes of the
patient's immediate family will
be given great weight.
In fact, the views expressed by
the Committee on the subject of
consultation with the relatives of
PVS patients are consistent with the opinion
expressed by your
Lordships' House in In re F [1990] 2 A.C. 1 that it is
good
practice for the doctor to consult relatives. Indeed the
committee recognises
that, in the case of PVS patients, the
relatives themselves will require a high
degree of support and
attention. But the committee is firmly of the opinion
that the
relatives' views cannot be determinative of the treatment. Indeed,
if
that were not so, the relatives would be able to dictate to the
doctors what is
in the best interests of the patient, which cannot
be right. Even so, a decision
to withhold life-prolonging
treatment, such as artificial feeding, must require
close
co-operation with those close to the patient; and it is recognised
that,
in practice, their views and the opinions of doctors will
coincide in many
cases.
Study of this document left me in
no doubt that, if a doctor treating a
PVS patient acts in
accordance with the medical practice now being evolved
by the
Medical Ethics Committee of the B.M.A., he will be acting with
the
benefit of guidance from a responsible and competent body of
relevant
- 17-
professional opinion, as required
by the Bolam test [1957] 1 W.L.R. 582. I
also feel that
those who are concerned that a matter of life and death, such as
is
involved in a decision to withhold life support in case of this kind,
should
be left to the doctors, would do well to study this paper.
The truth is that, in
the course of their work, doctors frequently
have to make decisions which
may affect the continued survival of
their patients, and are in reality far more
experienced in matters
of this kind than are the judges. It is nevertheless the
function
of the judges to state the legal principles upon which the
lawfulness
of the actions of doctors depend; but in the end the
decisions to be made in
individual cases must rest with the
doctors themselves. In these
circumstances, what is required is a
sensitive understanding by both the judges
and the doctors of each
other's respective functions, and in particular a
determination by
the judges not merely to understand the problems facing the
medical
profession in cases of this kind, but also to regard their
professional
standards with respect. Mutual understanding between
the doctors and the
judges is the best way to ensure the evolution
of a sensitive and sensible legal
framework for the treatment and
care of patients, with a sound ethical base,
in the interest of
the patients themselves. This is a topic to which I will return
at
the end of this opinion, when I come to consider the extent to which
the
view of the court should be sought, as a matter of practice,
in cases such as
the present.
I wish however to refer at this
stage to the approach adopted in most
American courts, under which
the court seeks, in a case in which the patient
is incapacitated
from expressing any view on the question whether life-
prolonging
treatment should be withheld in the relevant circumstances,
to
determine what decision the patient himself would have made had
he been able
to do so. This is called the substituted judgment
test, and it generally involves
a detailed inquiry into the
patient's views and preferences: see, e.g., Re
Quintan (1976)
355 A. 2d 647, and Superintendent of Belchertown State
School
v. Saikewicz 370 N.E. 2d 417. In later cases concerned with
PVS
patients it has been held that, in the absence of clear and
convincing evidence
of the patient's wishes, the surrogate
decision-maker has to implement as far
as possible the decision
which the incompetent patient would make if he was
competent.
However, accepting on this point the submission of Mr Lester,
I do
not consider that any such test forms part of English law in relation
to
incompetent adults, on whose behalf nobody has power to give
consent to
medical treatment. Certainly, in In re F [1990] 2 A.C. 1 your Lordships'
House adopted a straightforward test
based on the best interests of the patient;
and I myself do not
see why the same test should not be applied in the case
of PVS
patients, where the question is whether life-prolonging
treatment
should be withheld. This was also the opinion of Thomas
J. in Re J.H.L., a
case concerned with the discontinuance
of life support provided by ventilator
to a patient suffering from
the last stages of incurable Guillain-Barre
syndrome. Of course,
consistent with the best interests test, anything
relevant to the
application of the test may be taken into account; and if
the
personality of the patient is relevant to the application of
the test (as it may be
in cases where the various relevant factors
have to be weighed), it may be
-18-
taken into account, as was done in
In re J (A Minor) (Wardship: Medical
Treatment) [1991] Fam.
33. But where the question is whether life support
should be
withheld from a PVS patient, it is difficult to see how
the
personality of the patient can be relevant, though it may be
of comfort to his
relatives if they believe, as in the present
case, and indeed may well be so in
many other cases, that the
patient would not have wished his life to be
artificially
prolonged if he was totally unconscious and there was no hope
of
improvement in his condition.
I wish to add however that, like
the courts below, I have derived
assistance and support from
decisions in a number of American jurisdictions
to the effect that
it is lawful to discontinue life-prolonging treatment hi the
case
of PVS patients where there is no prospect of improvement in
their
condition. Furthermore, I wish to refer to the section in
Working Paper No.
28 (1982) on Euthanasia, Aiding Suicide and
Cessation of Treatment published
by the Law Reform Commission of
Canada concerned with cessation of
treatment, to which I also wish
to express my indebtedness. I believe the
legal principles as I
have stated them to be broadly consistent with the
conclusions
summarised at pp. 65-66 of the Working Paper, which was
substantially
accepted in the Report of the Commission (1983), pp. 32-35.
Indeed,
I entertain a strong sense that a community of view on the
legal
principles applicable in cases of discontinuing life support
is in the course of
development and acceptance throughout the
common law world.
In setting out my understanding of
the relevant principles, I have had
very much in mind the
submissions advanced by Mr Munby on behalf of the
Official
Solicitor, and I believe that I have answered, directly or
indirectly,
all his objections to the course now proposed. I do
not, therefore, intend any
disrespect to his argument if I do not
answer each of his submissions seriatim.
In summary, his two
principal arguments were as follows. First, he submitted
that the
discontinuance of artificial feeding would constitute an act
which
would inevitably cause, and be intended to cause, Anthony's
death; and as
such, it would be unlawful, and indeed criminal. As
will be plain from what
I have already said, I cannot accept this
proposition. In my opinion, for the
reasons I have already given,
there is no longer any duty upon the doctors to
continue with this
form of medical treatment or care in his case, and it follows
that
it cannot be unlawful to discontinue it. Second, he submitted
that
discontinuance of the artificial feeding of Anthony would be
a breach of the
doctor's duty to care for and feed him; and since
it will (as it is intended to
do) cause his death, it will
necessarily be unlawful. I have considered this
point earlier in
this opinion, when I expressed my view that artificial feeding
is,
in a case such as the present, no different from life support by a
ventilator,
and as such can lawfully be discontinued when it no
longer fulfils any
therapeutic purpose. To me, the crucial point
in which I found myself
differing from Mr Munby was that I was
unable to accept his treating the
discontinuance of artificial
feeding in the present case as equivalent to cutting
a
mountaineer's rope, or severing the air pipe of a deep sea diver.
Once it
is recognised, as I believe it must be, that the true
question is not whether the
-19-
doctor should take a course in
which he will actively kill his patient, but
rather whether he
should continue to provide his patient with medical
treatment or
care which, if continued, will prolong his life, then, as I see
it,
the essential basis of Mr Munby's submissions disappears. I
wish to add that
I was unable to accept his suggestion that recent
decisions show that the law
is proceeding down a "slippery
slope", in the sense that the courts are
becoming more and
more ready to allow doctors to take steps which will
result in the
ending of life. On the contrary, as I have attempted to
demonstrate,
the courts are acting within a structure of legal principle,
under
which in particular they continue to draw a clear
distinction between the
bounds of lawful treatment of a living
patient, and unlawful euthanasia.
I turn finally to the extent to
which doctors should, as a matter of
practice, seek the guidance
of the court, by way of an application for
declaratory relief,
before withholding life-prolonging treatment from a PVS
patient.
The President considered that the opinion of the court should
be
sought in all cases similar to the present. In the Court of
Appeal, the Master
of the Rolls expressed his agreement with the
President in the following
words:
"This was in my respectful
view a wise ruling, directed to the
protection of patients, the
protection of doctors, the reassurance of
patients' families and
the reassurance of the public. The practice
proposed seems to me
desirable. It may very well be that with the
passage of time a
body of experience and practice will build up which
will obviate
the need for application in every case, but for the time
being I
am satisfied that the practice which the President described
should
be followed."
Before the Appellate Committee,
this view was supported both by Mr
Munby, for the Official
Solicitor, and by Mr Lester, as amicus curiae. For
the
respondents, Mr Francis suggested that an adequate safeguard would
be
provided if reference to the court was required in certain
specific cases, i.e.
(1) where there was known to be a medical
disagreement as to the diagnosis
or prognosis, and (2) problems
had arisen with the patient's relatives -
disagreement by the next
of kin with the medical recommendation; actual or
apparent
conflict of interest between the next of kin and the patient;
dispute
between members of the patient's family; or absence of any
next of kin to
give their consent. There is, I consider, much to
be said for the view that an
application to the court will not be
needed in every case, but only in particular
circumstances, such
as those suggested by Mr Francis. In this connection I
was
impressed not only by the care being taken by the Medical
Ethics
Committee to provide guidance to the profession, but also
by information
given to the Appellate Committee about the
substantial number of PVS
patients in the country, and the very
considerable cost of obtaining guidance
from the court in cases
such as the present. However, in my opinion this is
a matter which
would be better kept under review by the President of the
Family
Division than resolved now by your Lordships' House. I understand
-20-
that a similar review is being
undertaken in cases concerned with the
sterilisation of adult
women of unsound mind, with a consequent relaxation of
the
practice relating to applications to the court in such cases. For my
part,
I would therefore leave the matter as proposed by the Master
of the Rolls;
but I wish to express the hope that the President of
the Family Division, who
will no doubt be kept well informed about
developments in this field, will
soon feel able to relax the
present requirement so as to limit applications for
declarations
to those cases in which there is a special need for the procedure
to
be invoked.
I wish to add one footnote. Since
preparing this opinion, I have had
the opportunity of reading in
draft the speech of my noble and learned friend,
Lord Browne
Wilkinson, in which he has expressed the view that a doctor,
in
reaching a decision whether or not to continue, in the best
interests of his
patient, to prolong his life by artificial means,
may well be influenced by his
own attitude to the sanctity of
human life. The point does not arise for
decision in the present
case. I only wish to observe that it has implications not
only in
the case of a patient who, like Anthony Bland, is totally
unconscious,
but also one who may be suffering from great physical
pain or (as in the case
of one suffering from Guillain-Barre
syndrome) extreme mental distress; and
it would in theory fall to
be tested if the patient's relatives, dismayed by the
artificial
prolongation of the agony of their loved one, were to seek to
restrain
by injunction a doctor who was persisting in prolonging
his life. I cannot help
feeling, however, that such a situation is
more theoretical than real. I suspect
that it is unlikely to arise
in practice, if only because the solution could be
found in a
change of medical practitioner. It is not to be forgotten,
moreover,
that doctors who for conscientious reasons would feel
unable to discontinue
life support in such circumstances can
presumably, like those who have a
conscientious objection to
abortion, abstain from involvement in such work.
For present
purposes, however, it is enough to state that the best interests
test
is broad and flexible in the sense that room must be allowed
for the exercise
of judgment by the doctor as to whether the
relevant conditions exist which
justify the discontinuance of life
support.
For these reasons, I would dismiss
the appeal. Having read in draft
the speech of my noble and
learned friend Lord Keith of Kinkel, I can see no
significant
difference from the opinion which I have expressed.
LORD LOWRY
My Lords,
I have had the advantage of
reading in draft the speeches of my noble
and learned friends and,
for the reasons given by my noble and learned friend
Lord Goff of
Chieveley, with which I understand the remainder of your
- 21 -
Lordships to be generally in
agreement, I agree that this appeal should be
dismissed.
I cannot usefully elaborate on
your Lordships' careful analysis of the
arguments. There are,
however, four points in relation to your Lordships'
reasoning and
conclusions which it may be worth my while to make.
I do not believe that there is a
valid legal distinction between the
omission to treat a patient
and the abandonment of treatment which has been
commenced, since
to recognise such a distinction could quite illogically confer
on
a doctor who had refrained from treatment an immunity which did
not
benefit a doctor who had embarked on treatment in order to
see whether it
might help the patient and had abandoned the
treatment when it was seen not
to do so.
As noted in In re F (Mental
Patient: Sterilisation) [1990] 2 A.C. 1 and
again in your
Lordships' speeches, the parens patriae jurisdiction over adults
who
are for whatever reason mentally incompetent was abolished by
statute.
I have never heard a rational, or indeed any,
explanation for this step, which
has placed under a further
disadvantage a class of adults who are already
handicapped.
Parliament has done nothing since In re F was decided, but
I
sincerely hope that the parens patriae jurisdiction over adults
will soon be
restored. The corresponding jurisdiction in
wardship has continued to prove
its value and it is most
unfortunate that the court's armoury in relation to
adults
remains thus depleted. The prospect of restoration of this lost
power
is not controversial, since it does not conjure up the
spectre of euthanasia; the
decisions which can be made by the
courts on behalf of incompetent persons
would, as in wardship
cases, be confined within lawful bounds.
Procedurally I can see no present
alternative to an application to the
court such as that made in
the present case. This view is reinforced for me
when I
reflect, against the background of your Lordships' conclusions of
law,
that, in the absence of an application, the doctor who
proposes the cessation
of life-supporting care and treatment on
the ground that their continuance
would not be in the patient's
best interests will have reached that conclusion
himself and will
be judge in his own cause unless and until his chosen course
of
action is challenged in criminal or civil proceedings. A practical
alternative
may, however, be evolved through the practice of the
Family Division and
with the help of the Medical Ethics
Committee, which has already devoted so
much thought to the
problem, and possibly of Parliament through legislation,
it will
of course be understood that the court has no power to render
lawful
something which without the court's sanction would have
been unlawful.
When I take into account that the case now before
your Lordships could not
be clearer on its facts, I have to say
that I am left with the feeling that the
general position is not
satisfactory.
Although entirely satisfied with
your Lordships' consensus, I ought
finally to touch on the real
point in the case. The strength of the Official
- 22 -
Solicitor's argument lies in its
simplicity. In answer to the respondent's
reliance on accepted
medical opinion that feeding (nutrition and hydration),
particularly
by sophisticated artificial methods, is part of the
life-supporting
medical treatment, he says that the duty to feed a
helpless person, such as a
baby or an unconscious patient, is
something different - an elementary duty
to keep the patient alive
which exists independently of all questions of
treatment and which
the person in charge cannot omit to perform: to omit
deliberately
to perform this duty in the knowledge that the omission will lead
to
the death of the helpless one, and indeed with the intention, as in
the
present case, of conducing to that death, will render those in
charge guilty of
murder. One of the respondent's counter
arguments, albeit not conclusive, is
based on the overwhelming
verdict of informed medical opinion worldwide,
with particular
reference to the common law jurisdictions, where the relevant
law
generally corresponds closely with our own, that therapy and
life-
supporting care, including sophisticated methods of
artificial feeding, are
components of medical treatment and cannot
be separated as the Official
Solicitor contends. In this
connection it may also be emphasised that an
artificial feeding
regime is inevitably associated with the continuous use of
catheters
and enemas and the sedulous avoidance and combatting of
potentially
deadly infection. I consider that the court, when
intent on reaching a decision
according to law, ought to give
weight to informed medical opinion both on
the point now under
discussion and also on the question of what is in the best
interests
of a patient and I reject the idea, which is implicit in the
appellant's
argument, that informed medical opinion in these
respects is merely a disguise
for a philosophy which, if accepted,
would legalise euthanasia.
The real answer to the Official
Solicitor, as your Lordships are already
agreed, is that his
argument starts from the fallacious premiss, which can be
taken as
correct in ordinary doctor-patient relationships, namely, that
feeding
in order to sustain life is necessarily for the
benefit of the patient. But in the
prevailing circumstances the
opposite view is overwhelmingly held by the
doctors and the
validity of that view has been accepted by the courts below.
The
doctors consider that in the patient's best interests they ought not
to feed
him and the law, as applied by your Lordships, has gone
further by saying
that they are not entitled to feed him without
his consent, which cannot be
obtained. So the theory of the "duty
to feed" is founded on a misapprehension
and the Official
Solicitor's argument leads to a legally erroneous conclusion.
Even
though the intention to bring about the patient's death is there,
there is
no proposed guilty act because, if it is not in the
interests of an insentient
patient to continue the life-supporting
care and treatment, the doctor would be
acting unlawfully if he
continued the care and treatment and would perform
no guilty act
by discontinuing.
I have no difficulty in accepting
both this legal conclusion and its
practical effect, but it is not
hard to see how the case might appear to a non-
lawyer, who might
express himself on the following lines:
-23-
"Yes, I understand the point,
now that you have explained it to me.
There is no duty, or indeed
right to feed, when feeding is not in the
best interests of the
patient. But the real reason for withdrawing
feeding is that the
doctors consider that it would be in the patients best
interests
for him to be allowed to die. (I also know that the same
result
could be achieved, if not so quickly, by allowing the patient's
next
infection to go untreated, but that is not just the point which
we
have been discussing here.) The solution here seems to me
to
introduce what lawyers call a distinction without a difference:
the
intention is to terminate life, but the acceptable way of
doing it is to
discontinue a regime which the law has said that
the doctors have no
duty or even right to continue. And,
incidentally, In re F (not that I
would venture to query
your reliance on that authority) was not
concerned with matters of
life and death at all. So might it not be
suggested, no doubt
quite wrongly, that this case is, in effect if not in
law, an
example of euthanasia in action? I can of course appreciate
the
arguments in a case like this, for indirectly terminating
the
patient's life and I believe that very many of my friends
would be in
favour of what is now proposed, but equally there must
be many
people who, from conviction or simply by virtue of their
conventional
upbringing, are unconvinced that someone who can be
kept alive
should be allowed to die."
My Lords, I have used the homely
expedient of attributing these words
to my hypothetical non-lawyer
in order to demonstrate the possible gap which
my noble and
learned friend Lord Mustill sees between old law and new
medicine
and perhaps also, I might add, new ethics. It is
important,
particularly in the area of criminal law which governs
conduct, that society's
notions of what is the law and what is
right should coincide. One role of the
legislator is to detect any
disparity between these notions and to take
appropriate action to
close the gap.
At all events, for the reasons
already relied on by your Lordships, I,
too, would dismiss this
appeal.
LORD BROWNE-WILKINSON
My Lords,
In this case the courts are asked
to give the answer to two questions:
whether the Airedale N.H.S.
Trust and the physicians attending Anthony
Bland may:
"(1) lawfully discontinue
all life-sustaining treatment and medical
support measures
designed to keep [Mr. Bland] alive in his existing
-24-
persistent vegetative state
including the termination of ventilation,
nutrition and hydration
by artificial means; and
"(2) lawfully discontinue and
thereafter need not furnish medical
treatment to [Mr. Bland]
except for the sole purpose of enabling [Mr.
Bland] to end his
life and die peacefully with the greatest dignity and
the least of
pain, suffering and distress."
Those are questions of law. But
behind the questions of law lie moral,
ethical, medical and
practical issues of fundamental importance to society. As
Hoffman
L.J. in the Court of Appeal emphasised, the law regulating
the
termination of artificial life support being given to patients
must, to be
acceptable, reflect a moral attitude which society
accepts. This has led judges
into the consideration of the ethical
and other non-legal problems raised by the
ability to sustain life
artificially which new medical technology has recently
made
possible. But in my judgment in giving the legal answer to
these
questions judges are faced with a dilemma. The ability to
sustain life
artificially is of relatively recent origin. Existing
law may not provide an
acceptable answer to the new legal
questions which it raises. Should judges
seek to develop new law
to meet a wholly new situation? Or is this a matter
which lies
outside the area of legitimate development of the law by judges
and
requires society, through the democratic expression of its
views in Parliament,
to reach its decisions on the underlying
moral and practical problems and then
reflect those decisions in
legislation?
I have no doubt that it is for
Parliament, not the courts, to decide the
broader issues which
this case raises. Until recently there was no doubt what
was life
and what was death. A man was dead if he stopped breathing and
his
heart stopped beating. There was no artificial means of
sustaining these
indications of life for more than a short while.
Death in the traditional sense
was beyond human control. Apart
from cases of unlawful homicide, death
occurred automatically in
the course of nature when the natural functions of
the body failed
to sustain the lungs and the heart.
Recent developments in medical
science have fundamentally affected
these previous certainties. In
medicine, the cessation of breathing or of
heartbeat is no longer
death. By the use of a ventilator, lungs which in the
unaided
course of nature would have stopped breathing can be made to
breathe,
thereby sustaining the heartbeat. Those, like Anthony Bland,
who
would previously have died through inability to swallow food
can be kept
alive by artificial feeding. This has led the medical
profession to redefine
death in terms of brain stem death, i.e.
the death of that part of the brain
without which the body cannot
function at all without assistance. In some
cases it is now
apparently possible, with the use of the ventilator, to sustain
a
beating heart even though the brain stem, and therefore in medical
terms the
patient, is dead; "the ventilated corpse".
-25 -
I do not refer to these factors
because Anthony Bland is already dead,
either medically or
legally. His brain stem is alive and so is he; provided that
he is
artificially fed and the waste products evacuated from his body by
skilled
medical care, his body sustains its own life. I refer to
these factors in order
to illustrate the scale of the problem
which is presented by modern
technological developments, of which
this case is merely one instance. The
physical state known as
death has changed. In many cases the time and
manner of death is
no longer dictated by nature but can be determined by
human
decision. The life of Anthony Bland, in the purely physical sense,
has
been and can be extended by skilled medical care for a period
of years.
To my mind, these technical
developments have raised a wholly new
series of ethical and social
problems. What is meant now by "life" in the
moral
precept which requires respect for the sanctity of human life? If
the
quality of life of a person such as Anthony Bland is
non-existent since he is
unaware of anything that happens to him,
has he a right to be sustained in that
state of living death and
are his family and medical attendants under a duty to
maintain it?
If Anthony Bland has no such right and others no such duty,
should
society draw a distinction (which some would see as artificial)
between
adopting a course of action designed to produce certain
death, on the one hand
through the lack of food, and on the other
from a fatal injection, the former
being permissible and the
latter (euthanasia) prohibited? If the withdrawal of
life support
is legitimate in the case of Anthony Bland, whose P.V.S. is
very
severe, what of others in this country also in P.V.S. (whom
we were told
numbered between 1,000 and 1,500) and others
suffering from medical
conditions having similar impact, e.g. the
Guillain-Barre syndrome? Who is
to decide, and according to what
criteria, who is to live and who to die?
What rights have the
relatives of the patient in taking that decision?
In addition to these ethical
questions, the new technology raises
practical problems. Given
that there are limited resources available for
medical care, is it
right to devote money to sustaining the lives of those who
are,
and always will be, unaware of their own existence rather than to
treating
those who, in a real sense, can be benefitted e.g. those
deprived of dialysis
for want of resources. Again, the timing of
the patient's death may have a
direct impact on the rights of
other parties. In the case of a patient suffering
from P.V.S. as a
result of a road accident, the amount of damages recoverable
will
depend on whether the patient is kept alive or allowed to die. We
were
told by the Official Solicitor that there have already been
cases in which this
factor has been taken into account by
relatives of the patient, though there is
no question of that in
the present case. Again, rights of succession to the
estate of the
patient may well depend on the timing of his death.
On the moral issues raised by this
case, society is not all of one mind.
Although it is probably true
that the majority would favour the withdrawal of
life support in
the present case, there is undoubtedly a substantial body of
opinion
that is strongly opposed. The evidence shows that the Roman
Catholic
church and orthodox Jews are opposed. Within the medical
-26-
profession itself, there are
those, including one of the very distinguished
doctors who gave
evidence in this case, who draw a distinction between
withholding
treatment on the one hand and withholding food and care on the
other,
the latter not being acceptable. The present case is an extreme
one,
since Anthony Bland can appreciate nothing whether he is
alive or dead: but
I have no doubt that less extreme cases will
come before the courts on which
public opinion may be more sharply
divided.
The position therefore, in my
view, is that if the judges seek to
develop new law to regulate
the new circumstances, the law so laid down will
of necessity
reflect judges' views on the underlying ethical questions,
questions
on which there is a legitimate division of opinion. By way
of
example, although the Court of Appeal in this case, in reaching
the conclusion
that the withdrawal of food and Anthony Bland's
subsequent death would be
for his benefit, attach importance to
impalpable factors such as personal
dignity and the way Anthony
Bland would wish to be remembered but do not
take into account
spiritual values which, for example, a member of the Roman
Catholic
church would regard as relevant in assessing such benefit. Where
a
case raises wholly new moral and social issues, in my judgment
it is not for
the judges to seek to develop new, all embracing,
principles of law in a way
which reflects the individual judges'
moral stance when society as a whole is
substantially divided on
the relevant moral issues. Moreover, it is not
legitimate for a
judge in reaching a view as to what is for the benefit of the
one
individual whose life is in issue to take into account the wider
practical
issues as to allocation of limited financial resources
or the impact on third
parties of altering the time at which death
occurs.
For these reasons, it seems to me
imperative that the moral, social and
legal issues raised by this
case should be considered by Parliament. The
judges' function in
this area of the law should be to apply the principles which
society,
through the democratic process, adopts, not to impose their
standards
on society. If Parliament fails to act, then judge-made
law will of necessity
through a gradual and uncertain process
provide a legal answer to each new
question as it arises. But in
my judgment that is not the best way to proceed.
The function of the court in these
circumstances is to determine this
particular case in accordance
with the existing law, and not seek to develop
new law laying down
a new regimen. The result of this limited approach may
be
unsatisfactory, both in moral and practical terms, but it is for
Parliament
to address the wider problems which the case raises and
lay down principles
of law generally applicable to the withdrawal
of life support systems.
Before turning to the strict
legality of what is proposed, I must say
something about the
procedure adopted in this case. The application asks the
court to
make declarations as to the legality of proposed future actions i.e.
if
granted, the declarations will purport to decide whether the
proposed
discontinuance of life support will constitute a crime.
In general the court sets
its face against making declarations as
to the criminality of proposed future
-27-
actions. But I agree with my noble
and learned friend Lord Goff of Chieveley
that in this case it is
absolutely necessary to do so. The doctors responsible
for Anthony
Bland's care have reached the view that it is for his benefit
to
withdraw life support but have been warned by the coroner that
it may
constitute a criminal offence if they do so. In the past,
doctors exercised their
own discretion, in accordance with medical
ethics, in cases such as these. To
the great advantage of society,
they took the responsibility of deciding whether
the perpetuation
of life was pointless. But there are now present amongst the
medical
and nursing staff of hospitals those who genuinely believe in
the
sanctity of human life, no matter what the quality of that
life, and report
doctors who take such decisions to the
authorities with a view to prosecution
for a criminal offence. I
am not criticising such people: they are acting in
accordance with
their own moral standards. But their actions have made it
extremely
risky for a doctor to take a decision of this kind when his
action
may lie on the borderline of legality. I have no doubt that
the courts should,
by declaration, provide to doctors faced with
such decisions clear rulings
whether the course they propose to
adopt is or is not lawful.
I turn then to the question
whether, under existing law, the proposed
discontinuance of the
artificial feeding of Anthony Bland would be lawful.
Such
discontinuance might be unlawful because (a) it would constitute
a
criminal offence or (b) it will give rise to civil liability to
Anthony Bland or
his personal representatives after his death.
A. Criminal Liability/Murder
It is the submission of the
Official Solicitor that the withdrawal of
artificial feeding would
constitute murder. The Official Solicitor has been
criticized for
using emotive language in this case. In my judgment this
criticism
is misplaced: much the most difficult question is indeed whether
the
proposed course of action is, in law, murder notwithstanding
the best motives
from which everyone concerned is acting.
Murder consists of causing the
death of another with intent so to do.
What is proposed in the
present case is to adopt a course with the intention of
bringing
about Anthony Bland's death. As to the element of intention or
mens
rea, in my judgment there can be no real doubt that it is
present in this case:
the whole purpose of stopping artificial
feeding is to bring about the death of
Anthony Bland.
As to the guilty act, or actus
reus, the criminal law draws a distinction
between the commission
of a positive act which causes death and the omission
to do an act
which would have prevented death. In general an omission to
prevent
death is not an actus reus and cannot give rise to a conviction
for
murder. But where the accused was under a duty to the deceased
to do the
act which he omitted to do, such omission can constitute
the actus reus of
homicide, either murder (Rex. v. Gibbins and
Proctor (1918) 13 Cr. App.
Rep. 134) or manslaughter (Reg.
v. Stone [1977] Q.B. 354) depending upon
-28-
the mens rea of the accused. The
Official Solicitor submits that the actus reus
of murder is
present on two alternative grounds, viz.
The withdrawal of artificial
feeding is a positive act of
commission; or
If what is proposed is only an
omission, the hospital and the
doctors have assumed a duty to
care for Anthony Bland
(including feeding him) and therefore the
omission to feed him
would constitute the actus reus of murder.
1. Positive Act of Commission
Mr Munby, in his powerful but
balanced argument for the Official
Solicitor, submits