in cases involving end of life decisions could lead to inflexibility, rigidity and obsolescence. He has also expressed the view (elsewhere) that certainty in the law is an advantage and sometimes a necessity. Discuss Scarman’s dilemma in relation to end of life decisions.
Sometime ago Lord Scarman made some interesting and profound extra-judicial remarks regarding the right to terminate another’s existence. He recognised at the time that there were great social problems not only in the life support of the human vegetable but also in the survival of barely sentient people who look after themselves. Since making the above remarks, the topic has been subject to intense moral scrutiny and recently to extensive legal analysis. Most cases under this head arise in relation to the persistent vegetative state (herein known as PVS). In such cases, the courts will normally be invited to pronounce on the lawfulness of withdrawing physiological support from severely brain-damaged patients.
A person living in PVS has been described as having ‘ a body which is functioning entirely in terms of its internal controls. It maintains temperature. It maintains heartbeat and pulmonary ventilation. It maintains digestive activity. It maintains reflex action of muscles and nerves for low level conditioned responses. But there is no behavioural evidence of either self-awareness or awareness of the surroundings in learned manner‘; In the matter of Jobes529 A 2d 434 (NJ, 1987).
The first and most important case in English Law of which the matter was addressed was the case of Airedale NHS Trust v Bland. Anthony Bland was crushed in a football stadium in April 1989 and sustained severe anoxic brain damage; as a result, he relapsed into the persistent vegetative state. There was no improvement in his condition by September 1992 and, at that time, the hospital sought a declaration to the effect that they might lawfully discontinue all life-sustaining treatment and medical support measures, including ventilation, nutrition and hydration by artificial means; that any subsequent treatment given should be for the sole purpose of enabling him to end his life in dignity and free from pain and suffering; that if death should then occur, its cause should be attributed to the natural and other causes of his present state. This declaration was granted in the Family Division on the grounds that it was in AB’s best interest to do so; the court considered there was overwhelming evidence that the provision of artificial feeding by means of a nasogastric tube was ‘medical treatment’ and that its discontinuance was in accord with good medical practice. An appeal was unanimously dismissed in the Court of Appeal.
The House of Lords was able to justify their unanimous decision on the basis of the patient’s best interests. All the opinions stressed that it was not a matter of it being in the best interests of the patient to die, but, rather, that it was not in his best interests to treat him so as to prolong his life in circumstances where no ‘affirmative benefit’ could be derived from the treatment. It was furthermore concluded that the Bolam v Friern Hospital Management Committee test – that the doctor’s decision should be judged against one which would be taken by a responsible and competent body of relevant professional opinion – applied in the management of PVS cases. This in essence gives considerable discretion to the medical profession to decide what amounts to the patient’s best interest’s by reference to its own standards and, in deciding that artificial feeding was, at least, an integral part of medical treatment, the House of Lords opened the door to health carers to withdraw alimentation. Nevertheless, the requirement to seek court approval in every case was maintained- subject to the hope that the restriction might be rescinded in the future. In conclusion, the House of Lords decision held that the artificial hydration and nutrition amounted to medical treatment and could be discontinued provided that responsible and competent medical opinion was of the view that it would be in his ‘best interests’ not to prolong his life by continuing that form of treatment because it was futile and would not confer any benefit on him. Lord Goff said ‘that the sanctity of life must yield to the principle of self-determination‘, and Lord Keith that ‘a person is completely at liberty to decline to undergo treatment even if the result of his doing so is that he will die‘.
The greater part of the opinions in Bland was concern for the doctors’ position vis–vis the criminal law. First it was essential to elide the possibility of murder by classifying removal of support as an omission rather than as a positive act. There was wide agreement that, while there was no moral or logical difference, a distinction was certainly to be made in law. The House of Lords came to a unanimous conclusion that discontinuance of nasogastric feeding was an omission; their Lordships achieved this in various ways but, in general, it was considered impossibly to distinguish between withdrawal of and not starting tube feeding- and the latter was clearly an omission. Next, the problem of the duty of care had to be addressed.
The case of Bland appeared to decide that, in England and Wales and Northern Ireland, proposals to withdraw artificial hydration and nutrition from a patient who is in PVS or in a very low state of awareness should- at least until a body of professional opinion has developed – be referred to the court. Predictably, Bland has been followed by other cases. The most important of theses have been cases such as Frenchay Healthcare NHS Trust v. S, Re G, and Swindon and Marlborough NHS Trust v S. These cases formed the backdrop to the British Medical Association’s recent advice on decisions about withholding or withdrawing artificial nutrition and hydration. The British Medical Association concluded that ‘treatment should never be withheld, however, where there is a possibility that it will benefit the patient simply because withholding it is considered easier than withdrawing it’.
In NHS Trust A v Mrs M, NHS Trust B v Mrs H, declarators of legality were sought on the proposed withdrawal of feeding and hydration from two patients in PVS. In authorising this the High Court not only endorsed the pre-existing position under Bland, but went further in testing this precedent against possible human rights objections under the 1998 Act, namely Article 2(right of life), Article 3 (prohibition of cruel and inhuman treatment), and Article 8 (right to respect for private life). The Court clearly adopted a good faith approach to the issue, focussing on the fact that, because a ‘responsible body of medical opinion’ has reached a conclusion as to futility, there is little more to be said on the matter. This, however, makes professionalism rather than principle the measure of patient protection. But, given that medical professionals are qualified only to comment on the medical futility of any proposed course of action, it is unclear why this should be determinative of the issue.
In examining the content of the human rights laid before it, the court fixed on the principle of respect for personal autonomy and concluded that, because the PVS patient could not consent to continued intervention, to continue to intervene against his or her best interests. The court also relied upon the incapacity of these patients to restrict their rights in another respect.
Consideration of later cases suggests that a note of caution may not have been misplaced. Almost exactly a year later, the case of Frenchay Healthcare NHS Trust v. S. This concerned a young man who had been in apparent PVS for two and a half years as a result of a drug overdose. When it was discovered that his gastronomy tube had become detached, a declaration was sought that the hospital could lawfully refrain from renewing or continuing alimentary and other life-sustaining measures and could restrict any medical treatment to that which would allow him to die peacefully and with the greatest dignity. The declaration was granted and the decision was upheld on appeal.
The best interests test has widely been accepted as the measure of good practice in surrogate medico-legal decision-making not only as to PVS but also to allied problems confronting those caring for incompetent adults. Some critics have said that the concept of consent is of major importance to the jurisprudence of the vegetative state and it is difficult to fit ‘consent’ into the inherently paternalistic concept of ‘best interests’. It is possible to hold that best interests of the patient are best served by respecting his autonomy but the argument has something of a hollow ring. This school of thought believe that an alternative basis on which to decide what an incompetent person would have consented to or refused must be found and, here, we suggest that the use of the substituted judgement test might be a preferred alternative in the circumstances under consideration.
The English courts, at least, have consistently rejected this approach in favour of a best interests test but, like it or not, an element of substituted judgement pervades many of the relevant cases. Our reasons for seeking what is, in effect, compliance with the patient’s supposed wishes are several. The main ground for objection to the concept of substituted judgement lies in its inapplicability to those who have never been competent to take such decisions. The fears of the judiciary are summed up by Lord Goff in Bland, who declined to allow active steps to bring about death in PVS patients because this would be to authorise euthanasia and: ‘once euthanasia is recognised as lawful in these circumstances, it is difficult to see any logical basis for excluding it in others‘.
The Bland case brought about huge public concern and the Government promised that they would not enshrine the Bland decision into statute law. The House of Lords select committee on medical ethics opposed the enshrining of advance directives into statute law. Advance Directives are used to describe a position of patients who are unable to express their own wishes and who have at some time expressed some wishes in an ‘advance directive’. The Government nevertheless introduced a recommendation in a recent paper ‘Making Decisions’ which aimed to do exactly the opposite of that which it promised. In the paper the Government claimed that defacto advance directives were already binding through common law decisions such as in the Bland judgement. The decision in Bland has been used as the basis for accepted medical killing in a wide range of cases. It was recommended in the paper that a proxy decision taker could make it possible for the withdrawal of feeding to cause the death of the person to whom he/she is acting, albeit that the authority for such treatment must be given specifically in the continuing power of attorney made in advance by the patient.
So far, what is consistent in all of the case law on the topic of end of life situations is the insistence that this does not constitute euthanasia and indeed, it is this that underwrites their legality. To legislate for PVS alone would be to concentrate on its particular clinical status and to segregate it from general euthanasia debate. Other advantages of legislation would be that the limits of PVS were statutorily determined and that a clear framework could be devised within which doctors withdrawing treatment could be seen to be acting lawfully without the need for routine approval by the court. The disadvantage of legislating could be that it would be restrictive while withdrawal of support from the Bland-type patient would be permissible, non-treatment options might be barred in many cases of brain damage.
- Irwin S, Fazan C, Allfrey R, Medical Negligence Litigation, Legal Action Group 1995
- Mason J K, McCall Smith R A, Laurie G T, Law and Medical Ethics, 6th edition: Butterworths
- Kennedy I & Grubb A, Medical Law, Butterworths: 2000