Although it is unlawful for a doctor to do a positive act to bring about a patient's death, the discontinuance of life support treatment is an omission which is lawful when such treatment is futile because the patient is unconscious and there is no prospect of any improvement and discontinuance is in accordance with responsible medical opinion.
The House of Lords dismissed an appeal by the Official Solicitor on behalf of Anthony David Bland from declarations made by Sir Stephen Brown, President (Independent, 20 November 1992) and affirmed by the Court of Appeal (Independent, 10 December 1992) that the NHS trust might lawfully discontinue life-saving and medical supportive treatment designed to keep Anthony Bland alive in his persistent vegetative state.
As a result of injuries sustained in the Hillsborough disaster in 1989, Mr Bland has for over three years been in a persistent vegetative state.
His brain stem, which controls reflexive functions such as breathing and digestion, continues to operate, but he has no cognitive function or sensory capacity. He is fed by a nasogastric tube. There is no prospect of any recovery.
James Munby QC (Official Solicitor) as Mr Bland's guardian ad litem; Robert Francis QC and Michael R Taylor (Penningtons) for the NHS trust; Anthony Lester QC and Pushpinder Saini (Treasury Solicitor) as amicus curiae.
LORD KEITH said that the principle of sanctity of life did not compel a medical practitioner to treat a patient, who would die if he did not, contrary to the express wishes of the patient. It did not authorise forcible feeding of prisoners on hunger strike. However it forbade the taking of active measures to cut short the life of a terminally ill patient.
LORD GOFF, agreeing, said that the fundamental principle of the sanctity of human life must yield to the principle of self-determination which required that respect be given to the wishes of the patient. The doctor's duty to act in the best interests of his patient must likewise be qualified.
However, the law drew a crucial distinction between cases in which a doctor decided not to provide or continue to provide treatment which could prolong his patient's life and those in which he decided, for example by administering a lethal drug, actively to bring a patient's life to an end. It was not lawful for a doctor to administer a drug to his patient to bring about his death, even though that course was prompted by a humanitarian desire to end his suffering, however great. Euthanasia was not lawful at common law.
The doctor's conduct in discontinuing life support was an omission which would not be unlawful unless it constituted a breach of duty to the patient. Whereas the law considered that discontinuance of life support might be consistent with the doctor's duty to care for his patient, it did not, for reasons of policy, consider that it formed any part of his duty to give his patient a lethal injection to put him out of his agony.
The question was not whether it was in the best interests of the patient that he should die but whether it was in his best interests that his life should be prolonged by the continuance of medical treatment.
Medical treatment was not appropriate or requisite simply to prolong a patient's life, when such treatment had no therapeutic purpose, as where it was futile because the patient was unconscious and there was no prospect of any improvement in his condition. It was the futility of the treatment which justified its termination. In such circumstances a doctor was not required to initiate or to continue life-prolonging treatment of care in the best interests of his patient.
The doctor's decision to intitiate or discontinue life support must be in accordance with a responsible and competent body of relevant professional opinion. It was the function of judges to state the legal principles on which the lawfulness of the actions of doctors depended; but in the end the decisions must rest with the doctors themselves.
LORD LOWRY, agreeing, said that it was important in the area of criminal law which governed conduct, that society's notion of what was the law and what was right should coincide. One role of the legislator was to detect any disparity between those notions and to take appropriate action to close the gap.
LORD BROWNE-WILKINSON said that it was for Parliament, not the courts, to decide the broader issues which the case raised. Where a case raised wholly new moral and social issues it was not for judges to seek to develop new, all embracing, principles of law in a way which reflected the individual judges' moral stance when society as a whole was substantially divided on the relevant moral issues. It seemed imperative that the moral, social and legal issues raised should be considered by Parliament.
His Lordship reached the conclusion that the discontinuance of life support would be lawful on narrow legalistic grounds which would provide no satisfactory basis for decisions in future cases where the facts were not identical. This was an extreme case. Nothing said cast doubt on the proposition that the doing of a positive act with the intention of ending life was murder.
LORD MUSTILL, upholding the declarations, said that the whole matter cried out for exploration in depth by Parliament and for the establishment by legislation not only of a new set of ethically and intellectually consistent rules, distinct from the general criminal law, but also of a sound procedural framework within which the rules could be applied in individual cases. The decision was ethical, not medical, and there was no reason in logic why the opinions of doctors should be decisive.
Join our commenting forum
Join thought-provoking conversations, follow other Independent readers and see their replies