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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: -

    1. 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

    2. 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.


    1. 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.

    2. 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.

    3. 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.

    4. 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.

    1. The withdrawal of artificial feeding is a positive act of
      commission; or

    2. 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