The Court of Appeal dismissed an appeal by the Official Solicitor, on behalf of Anthony David Bland, from declarations made by Sir Stephen Brown, President (the Independent, 20 November 1992) that the NHS trust might lawfully discontinue treatment designed to keep Anthony Bland alive in his persistent vegetative state.
Mr Bland, when aged 17-and-a- half, was injured in the Hillsborough football ground disaster in April 1989. His lungs were severely crushed and the supply of oxygen to his brain was interrupted. For three-and-a-half years he has suffered a condition known as persistent vegetative state, which is distinct from irreversible coma and brain death.
Mr Bland breathes unaided. He is incapable of voluntary movement, although capable of reflex movement. He has no cognitive function. He is fed by a nasogastric tube. Medical experts agree that there is no hope of any improvement or recovery.
The NHS Trust, with the concurrence of Mr Bland's family, applied for declarations that it was lawful to discontine treatment.
James Munby QC (Official Solicitor) as Mr Bland's guardian ad litem; Robert Francis QC, and Michael R Taylor (Solicitor, Yorkshire Health Authority) for the NHS Trust; Anthony Lester QC, and Pushbinder Saini (Treasury Solicitor) for the Attorney General as amicus curiae.
SIR THOMAS BINGHAM MR said that the case was not about euthanasia or putting down the old and infirm, the mentally defective or the physically imperfect, or eugenic practices. A profound respect for the sanctity of human life was embedded in our law and moral philosophy.
It was a civil wrong, and might be a crime, to impose medical treatment on a conscious adult of sound mind without his or her consent. A medical practitioner must comply with clear instructions given by an adult of sound mind as to the treatment to be given, whether those instructions were rational or irrational. Where an adult patient was mentally incapable of giving consent, no one, including the court, could give consent on his behalf. Treatment might lawfully be provided by a doctor where the treatment was in the best interests of the patient.
Where the patient was a child and a ward of the court, it would decide what was in the patient's best interests. The court might judge it to be in the child's best interest that life-saving measures be withheld if the life thereby prolonged would be one of intolerable pain and deprivation.
Mr Bland was not a child and ward, was immune to suffering and gave no instructions concerning his treatment if he were to become a PVS patient.
It did not seem crucial whether or not artificial feeding by nasogastric tube was regarded as medical treatment, since whether or not it was, it formed part of the patient's medical care.
The question whether artificial feeding and antibiotic treatment should be discontinued was one to be resolved by the doctors in charge, exercising a careful and informed judgement of what the best interests of their patient required. It was appropriate to take full account of the family's wishes.
The presumption in favour of prolonging human life was not irrebuttable. Mere prolongation of the life of a PVS patient was not necessarily in his best interests. In making an objective judgement of Mr Bland's best interests, account could be taken not only of pain and suffering which prolonged feeding and medication might cause, but also of wider, less tangible considerations.
The assessment of Mr Bland's best interests, although initially a matter for his doctors, was ultimately subject to the sanction of the court where its jurisdiction was invoked. There was no reason to impugn the doctors' judgement here. Unless the doctors' premises could be effectively challenged, there was no ground for withholding the court's sanction.
A doctor who discontinued artificial feeding of a PVS patient, after a lapse of time which entitled him to be sure that there was no hope of recovery, in pursuance of a conscientious and proper judgement that such action was in the patient's best interests, was guilty of no crime. That was not an unlawful act, the doctor lacked criminal intent, breached no duty and his act did not cause death. In cases of this kind application should be made to the court to obtain its sanction.
Lord Justice Butler-Sloss, concurring, said that factors, including the reality of Mr Bland's existence outweighed the abstract requirement to preserve life. The doctors had concluded that his best interests lay in not artificially prolonging his life.
Lord Justice Hoffmann, concurring, said the court's decision should be able to carry conviction with the ordinary person as being based not merely on legal precedent but also upon acceptable ethical values. A conflict between the principles of the sanctity of life and individual's right of self-determination might require a painful compromise to be made.
The concept of having a life had no meaning in relation to Mr Bland. He was alive but had no life at all. If Mr Bland was unable to express his choice, we should try our honest best to do what we think he would have chosen. In this extraordinary case, it was more likely Mr Bland would choose to put an end to the humiliation of his being and the distress of his family. It would show greater respect to allow him to die than to keep him grotesquely alive. Thus, in principle, it would be right to allow Mr Bland to die.