Medical Law

When referring to the judgement in Airedale NHS Trust v.

Bland, Lord Scarman warned that statute law 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.

Bibliography

• Irwin S, Fazan C, Allfrey R, Medical Negligence Litigation, Legal Action Group 1995
• Mason J K, McCall Smith R A, LaurieG T, Law and Medical Ethics, 6^th edition: Butterworths
• Kennedy I & Grubb A, Medical Law, Butterworths: 2000