Introduction	Part 2	Part 3	Appendices
Part 1	Introduction to Part 2	Introduction to Part 3	Appendix A
Introduction to Part 1	Chapter 6	Chapter 9	Appendix B
Chapter 1	Chapter 7	Chapter 10	Appendix C
Chapter 2	Chapter 8	Chapter 11	Appendix D
Chapter 3	Conclusions to Part 2	Thesis Conclusions	Appendix E
Chapter 4			Appendix F
Chapter 5			Bibliography
Conclusions to Part 1			Books and Articles
			Legal Cases

 

Appendix C: Relevant Legal Judgements

 

 

The relevant legal judgements are examined in detail in this appendix.  The citations for cases discussed in this appendix are listed in Table C-1 and the case details are given in Table C-2.

	Name of case	Date	Citation
IRELAND
1	The Ward Case	1995	High Court: unreported judgement delivered on 5th May 1995. Supreme Court: In the Matter of a Ward of Court [1995] 2 ILRM 401.
ENGLAND
2	The Bland Case	1993	Airedale N.H.S. Trust v Bland [1993] A.C. 789:  (High Court at p.795 et seq.; Court of Appeal at p.806 et seq.; House of Lords at p. 856 et seq.)
3	Frenchay v S	Jan. 1994	Frenchay Healthcare NHS Trust v S [1994] 2 All ER 403.
4	Re G	Nov.1994	Re G (Persistent Vegetative State) [1995] 2 F.C.R. 47.
5	Re D (Medical Treatment)	1997	The Times 21st and 22nd March 1997; subsequently reported as Re D (Medical Treatment) [1998] 1 F.L.R. 411.
6	In re F. (Mental Patient: Sterilisation)	1990	In re F(Mental Patient: sterilisation) [1990] 2 A.C. 1.
7	Re B (a minor) (wardship: medical treatment )	1981 (reported in 1990)	Re B. (a minor) (wardship: medical treatment) [1990] 3 All ER 927.
8	McKay and another v Essex Area Health Authority and another	1982	McKay and another v Essex Area Health Authority and another (1982) 2 All ER 771.
9	Re C (a minor) (wardship: medical treatment)	1989	Re C (a minor) (wardship :medical treatment ) [1989] 2 All ER 782.
10	Re J (a minor)(wardship: medical treatment )	1990	In re J. (A Minor) (Wardship: Medical Treatment) [1990] 3 All ER 930.
11	Re R (Adult: Medical Treatment)	1996	Re R (Adult: Medical treatment) [1996] 2 FLR 99.
12	T (A Minor) (Wardship:  Medical treatment )	1996	The Times of 25th October 1996; see also Current Law Year Book 1996,179.
13	Re C (A Baby)	1997	Re C (A Baby) [1998] 1 F.L.R. p. 384;  The Times of 20th  November 1997.
14	Ex parte Glass	1999	The High Court proceedings were reported in The Times 22nd April 1999; The Guardian 23rd April 1999. The judgement of the Court of Appeal was reported as: R v Portsmouth Hospital NHS Trust, Ex parte Glass: The Times 26th July 1999.
CANADA AND NEW ZEALAND
15	Re Superintendent of Family and Dawson	1983	Re Superintendent of Family and Child Service and Dawson (1983) 145 D.L.R. (3d) 610.
16	Nancy B. v Hotel-Dieu de Quebec	1992	Nancy B. v Hotel-Dieu de Quebec 86 D.L.R. (4th) 385.
17	Auckland Area Health Board v AG	1992	Auckland Area Health Board v Attorney General  [1993] 1NZLR 235.

Table C-1: Citations of cases summarised in Appendix C

Note:

(i)    Aspects of cases which are of a purely legal relevance have been omitted.

(ii)  The term ‘ANH’ is the acronym for ‘Artificial Nutrition and Hydration’.

 

 

Type of case		Name of case	Date	Notes	Page
IRELAND
PVS	1	The Ward Case	1995	near-PVS	431
ENGLAND
PVS	2	The Bland Case	1993	PVS	434
	3	Frenchay v S.	Jan 1994	PVS - Emergency decision on treatment withdrawal without the opportunity for independent medical assessment.	439
	4	Re G	Nov. 1994	PVS - more profound vegetative state than Tony Bland; family not unanimous on the withdrawal of ANH.	440
	5	Re D (medical treatment)	March 1997	‘Borderline’ PVS - tube had become disconnected; whether an operation to reinsert the tube should be performed.	441
Absence of consent	6	In re F. (mental patient: sterilisation)	1990	Sterilisation of a mentally handicapped woman.	441
Disability	7	Re B (a minor) (wardship: medical treatment )	1981 [report-ed in 1990]	A baby born with Down Syndrome also had an intestinal blockage which could be cured without difficulty.  The parents opposed the operation ; whether the parents wishes should be respected.	442
	8	McKay and another v Essex Area Health Authority and another	1982	A mother contracted rubella during pregnancy and her child was born severely disabled; whether her child had a right to claim damages because the pregnancy had not been terminated.	443
	9	Re C (a minor) (wardship: medical treatment )	1989	Discussed the appropriate treatment for a baby who was severely handicapped and terminally ill.	444
	10	Re J (a minor) (wardship: medical treatment)	1990	Withholding life-saving treatment from a     4-month old baby who was grossly handicapped but who was not dying.	444
	11	Re R (adult: medical treatment)	1996	R, a 23 year old, had malformation of the brain and cerebral palsy; his psychiatrist had signed a ‘do not resuscitate order’; whether such an order was appropriate.	447
	12	T (a minor) (wardship: medical treatment )	1996	The High Court supported a mother’s right to refuse consent to a life saving operation for her 18-month-old child, against the judgement of the child’s doctors; ‘best interests’ can include non-medical factors.	448
	13	Re C (a baby)	1997	The High Court overruled parents’ objections, which were on religious grounds, and permitted the withdrawal of artificial ventilation from a 16-month-old, fatally ill, child.	448
	14	Ex parte Glass	1999	Mother objected to withdrawal of ventilation from her 12-year-old severely disabled son.	449
CANADA and NEW ZEALAND
Disability	15	Re Superintendent of Family and Dawson	1983	The issues to be considered when making treatment decisions for a disabled child.	450
Locked-in syndrome	16	Nancy B. v Hotel-Dieu de Quebec	1992	Patient with ‘locked-in syndrome’; whether patient entitled to have life sustaining treatment discontinued.	451
Locked-in syndrome	17	Auckland Area Health Board v AG	1992	Patient with ‘locked-in syndrome’; whether doctors entitled to have treatment discontinued.	451

Table C-2: Details of cases summarised in Appendix C

The cases are now examined in the order given in Table C-1.

Ireland 

 

1. The Ward Case [i]

 

Facts::- In 1972 a 22-year-old woman attended a Dublin hospital for a minor gynaecological operation.  During the operation she suffered cardiac arrests which caused severe brain damage.  As a result she was left spastic, bedridden and incontinent.  She was unable to speak, her mouth was permanently clenched and she was unable to swallow.  She was fed artificially, at first by a nasogastric tube - which seemed to cause her considerable distress - and, subsequently, by a gastrostomy tube.  Her eyes were open and often followed people moving in her vicinity.  The judgement of her doctors was that such behaviour was mainly ‘reflex’ with only a minimal purposive content.  She was diagnosed as being in a ‘near-Permanent Vegetative State’ and it was the opinion of her doctors that recovery was most unlikely.

For over twenty years her condition remained essentially unchanged and during that period she had been made a ward of court.  In 1995 her family, believing that her continued medical treatment was causing her considerable distress, sought an order from the High Court that medical treatment, other than that of a purely palliative nature, be discontinued and that she be allowed to die.

The hospital authorities opposed this application.

 

The High Court

 

Held (per Lynch J.)::- Counsel for the family had argued - relying on the constitutional recognition accorded to the family - that the decision as to the future treatment of the Ward lay with her family rather than with the medical carers or with the court.  The court rejected this contention and set out[ii] and approved, what it saw as the current medical practice in relation to disputes between family and carers concerning the withdrawal of treatment from incompetent patients; it decided that, in such cases, the ultimate power of decision lay with the courts. [iii]  The various eventualities are most easily summarised in tabular form and are set out in Table C-3:

Line	Patient terminally ill	Family want withdrawal	Medical carers want withdrawal	2nd medical opinion required	Treatment can be withdrawn without the need for a Court application
1.	Yes	Yes	Yes	not obligatory	Yes
2.	Yes	No	Yes	obligatory	Yes
3.	Yes	Yes	No	not obligatory	Court application required
4.	No	Yes	No	not obligatory	Court application required
5.	No	No	Yes	(situation unclear)	(situation unclear)
6.	No	Yes	Yes	(situation unclear)	Yes

Table C-3: Legal requirements for treatment withdrawal as set out in the Ward case.

 

The court next considered the effect of the constitutional provision guaranteeing the right to life; it had been urged on the court that because this was so fundamental a right, and because the state was constitutionally obliged to defend it, a person would have no right to kill themselves irrespective of the circumstances that pertained.  By considering the example of a prisoner subjected to cruel torture, the court found that such a prohibition was too widely stated and that a time would come when - in the interests of his dignity and autonomy - the prisoner would have the right to take his own life.  The court held that, when expressed in a medical setting, these same interests and principles imply that a competent patient has the right to refuse burdensome medical treatment even though such a refusal results in their death.  However, the court did not consider that this right of a competent patient to refuse medical treatment was unqualified: the refusal needed, in the circumstances, to be ‘reasonable’.

The court then sought to apply these principles to the situation of the Ward: the hospital authorities had argued that the tube feeding of the Ward must be considered to be ‘normal’ for the Ward because she had been nourished in that way for many years.  The court held that a state of affairs which was abnormal could not become normal simply by virtue of its continuance for an extended time; accordingly since tube feeding was, generally, not a normal means of nourishment it could not be so in the Ward’s case and must be considered to be a form of medical treatment.  The court held that when making a decision to withdraw treatment, the test to be applied was the ‘best interests test’; the relevant question was ‘What is in the best interests of the Ward?’  The court found that the benefit to the Ward of continued medical treatment was far outweighed by the burden of sustaining her life in the manner contemplated and with no hope of any improvement; accordingly it was in the Ward’s best interests that treatment be terminated.  The court also found support for this course of action in its finding that this would accord with the Ward’s wishes.  The court consented to the withdrawal of ANH and to the non-treatment of infections other than palliatively. 

The court did not make an order against the hospital authorities because it accepted that the withdrawal of treatment would, in such circumstances, be contrary to their philosophy; the court gave permission to the family to move the Ward to an institution which would not find such a withdrawal of treatment objectionable.

 

The Supreme Court

(Hamilton, CJ., O’Flaherty, Blayney and Denham JJ., in favour of the withdrawal of ANH; Egan, J., dissenting.)

 

The judgement of the High Court had been appealed on the grounds[iv] that the decision to permit a withdrawal of ANH was wrongful because, inter alia:

(i)   it was predicated upon an assessment of the ‘quality of life’ of the Ward which was impermissible under the Constitution and that if the State were ever to take ‘quality of life’ considerations into account it would mean that the state provided less protection for the most disadvantaged, or the most vulnerable, of its citizens.

(ii)  it affected a person with cognition (even if it be extremely minimal) and was thus contrary to the Constitution.

(iii) the decision failed to vindicate the constitutional right to life of the Ward.

(iv) ANH was not a ‘medical treatment’.

 

Hamilton CJ.

 

Hamilton CJ. found that the right to life took precedence over all other constitutional rights but that this right had ancillary rights, one of which was ‘the right to have nature take its course and to die a natural death’. [v]  A competent adult has, if terminally ill, the right to forgo life-saving treatment.  The Ward could be considered terminally ill because, in the absence of treatment, she would die within a short period of time; accordingly, she would, if competent, have the right to forgo treatment.  Since the loss of mental capacity must not operate so as to diminish her constitutional rights the court must exercise these rights on her behalf; in doing so the paramount consideration must be the ‘best interests’ of the Ward.  The withdrawal of ANH was in the ‘best interests’ of the Ward.

 

O’Flaherty J.

 

O’Flaherty J. held that ANH was a ‘medical treatment’ and that - flowing from the right to bodily integrity - there was an absolute right in a competent person to refuse medical treatment.  He further accepted that the court could not step aside from making a decision, because to allow the treatment to continue is as much a decision as to stop it - a point also made in the judgement of Denham J.  O’Flaherty J., found it impossible to adapt the idea of ‘substituted judgement’ to the facts of the case before him and held that the test to be applied was the ‘best interests’ test which, in this case, was best served by the withdrawal of treatment thus allowing nature to take its course.

 

Egan J.

 

Egan J. found that the method of providing sustenance to the Ward was intrusive and would - if she were competent - require her consent; but he found that there was little useful evidence as to what her wishes might be.  He rejected the suggestion that she was terminally ill.  He held that the inevitable result of the removal of the tube would be to kill a human being and accordingly it must be rejected.  Furthermore, pointing out that the Ward had some cognition, he posed the rhetorical questions “If slightly more cognitive function existed, would a right to withdraw sustenance still be claimed?  Where would the line be drawn?” [vi]

 

Blayney J.

 

Blayney J. held that the trial judge clearly complied with the constitutional obligation to respect the Ward’s life by addressing very fully the question of whether it was of any benefit to her to prolong her life.  He also accepted that not only was the ANH a ‘medical treatment’, but that it was also abnormal; though the relevance of this latter point is not developed.  He agreed to the withdrawal of ANH.

 

Denham J.

 

Denham J. held that medical treatment may not be given to a competent person without their consent; this right flows from the constitutional rights to privacy and to be treated with dignity.  She held that ANH was a ‘medical treatment’; that the constitutional rights of the Ward were equal to those of any other citizen; and that the question before the court was whether these rights could be exercised by anyone else on her behalf.

Denham J., held that the question was to be decided as one of personal rights rather than of family rights, and accordingly the making of the decision rested with the court (as the guardian of the rights of the ward) though they would be influenced in their decision by the views of the family.  The test to be applied by the court is: ‘Is it in the best interests of the Ward that the court consent to continued treatment?’  A list of the factors to be taken into account by the court in making its decision was provided.  A consideration of these factors - in particular the invasive nature of the treatment - make clear that it is in the best interests of the Ward that treatment be withdrawn.

 

England

 

PVS Cases 

 

2. The Bland Case[vii]

 

Facts::- Tony Bland who was then aged 17, was seriously injured in the Hillsborough football disaster.  He suffered severe brain damage and was subsequently diagnosed as being in a PVS and was fed by a nasogastric tube.  At the time of the court application he had been in this condition for three and a half years; the medical prognosis was to the effect that there was no hope of any recovery.  At no time before the disaster had he made his wishes known as to how in such an eventuality, he wished to be treated, though his father was of the opinion that his son would not want to be left to remain in his present condition.

The court application was for a declaration that the withdrawal of medical treatment (including ANH) was lawful; it was made by the health authority in charge of the hospital wherein the patient was being treated with the concurrence of the family and the support of the consultant physicians involved in the case and also that of independent physicians. 

The court application was made because the medical team had been advised that a withdrawal of ANH could lead to a criminal prosecution for murder.

The application was heard:

(i)          at first instance in the High Court: by Sir Stephen Brown.

(ii)        on appeal to the Court of Appeal: before Bingham M.R., Butler-Sloss and Hoffman L JJ..

(iii)        on appeal to the House of Lords: before Lords Keith, Goff, Lowry, Browne-Wilkinson and Mustill.

 

The High Court

 

Sir Stephen Brown

 

Dr Andrews had given evidence against regarding ANH as a ‘medical treatment’ and against resolving the problem by withdrawal of treatment as ‘he would find the means of death worrying’.[viii]  However, the preponderance of the medical evidence was that ANH was a ‘medical treatment’ and it was accepted to be so by Sir Stephen Brown who forthrightly acknowledged that the process would be one of ‘starvation’.[ix]

This case was the first English case to consider such matters and the court placed reliance on the case of In re J [x] which concerned a severely brain damaged child and in which the court had stated that:

 “ ... account has to be taken of the pain and suffering and the quality of life which the child will experience if life is prolonged.” [xi]

The official solicitor had argued that as Tony Bland was incapable of feeling or awareness - this was conceded by all sides - such consideration could not apply.  However, the court held that the interests of Tony Bland were best served by the withdrawal of ANH. 

The court directed that in similar cases before treatment be withdrawn, application be made to the High Court and be based on the testimony of at least two medical experts[xii] and that such a procedure was essential[xiii] in cases where there was of a division of opinion amongst family members.  This recommendation was endorsed by both the Court of Appeal and the House of Lords.

 

The Court of Appeal

 

(The judgement that ANH be withdrawn, was unanimous.)

Bingham, M.R.

 

Sir Thomas Bingham first set out certain principles which he held had been accepted by all parties.  These were that:

(i)          Medical treatment may not be imposed on a competent person without their consent; this is so even if the reasons given for the refusal are irrational.

(ii)        In the case of an incompetent adult, no one (and this includes the court) can give consent on his behalf; however, treatment may be provided by a doctor where the treatment is in the best interests of the patient.[xiv]

(iii)       In cases where the patient is a child or a ward of court, the court will itself decide when treatment is in the best interests of the patient.

Accordingly, had Tony Bland given instructions concerning artificial feeding these would be binding.  Had he been a child or a ward of court, the court could give consent.  This case is novel because it falls outside these situations.

[Note::- The parens patriae jurisdiction[xv] of the court over an incompetent adult was implicitly removed by statute and as a result, the English courts had lost the power to consent to invasive treatment of incompetents other than those who were children or wards of court.  However, the court (in the case In re F) laid down the principle - based on the law of necessity - that a doctor can lawfully treat an incompetent adult if it is in the patient’s best interests that he do so.  The result is that although the courts could not make a decision on treatment withdrawal for Tony Bland, they could lay down the criteria to be used by the doctor in making this decision.  This issue was much discussed in the various judgements in the Court of Appeal and in the House of Lords.

In the Ward case, the Irish courts made their judgement by explicitly invoking the parens patriae jurisdiction, thus their decision is not restricted to cases of wardship.]

Sir Thomas Bingham held that it is not crucial to decide as to whether ANH is ‘medical treatment’ as it is undoubtedly ‘medical care’ and the answer to the problem before the Court should not depend on such fine distinctions.  The indefinite prolonging of the life of an insensate patient is not one of the objects of medical care.  The assessment of the patient’s best interests is, in the first instance, for the doctors but is subject to a review by the courts.  In the present case there was no reason for not accepting the doctors’ assessment.  Indeed, if one endeavours to look at the matter through Mr. Bland’s eyes, it is difficult to conceive of any benefit his continued existence could give him.

Application to the court was required in similar cases until such time as a body of experience and practice in dealing with these cases has been established.

 

Butler-Sloss L.J.

 

Lady Butler-Sloss noted that the starting point for an analysis of this case is the right of self-determination; this right implies the right to refuse medical treatment irrespective of whether the reasons given are rational or irrational.  As Tony Bland is incompetent, no one can consent to treatment on his behalf; however, treatment may be lawfully given if it is in his best interests. The judgement of best interests involves a balancing exercise and although the severity of pain is an important consideration it is not the only one; issues of human dignity and the intrusiveness must be considered.  Because of the gravity of the case, the medical assessment of best interests requires some degree of monitoring and in subsequent cases applications to discontinue treatment should be made to the High Court.

The provision of ANH has been considered as medical treatment by courts and medical authorities worldwide; the Mental Health Act 1983 includes nursing care in its definition of ‘medical treatment’.  However, by considering ANH as ‘medical care’ - rather than ‘medical treatment’ - the necessity for over-subtle distinctions can be avoided. 

The distinction between an ‘act’ and an ‘omission’ is not helpful.  The case of R v Cox (1992)[xvi] -where a doctor had given his patient an injection and used a lethal dosage designed to cause death - was distinguished because, in that case, Dr. Cox had introduced an ‘external agency of death.’

 

Hoffman L.J.

 

Lord Hoffman noted that appeal is often made to the principle of the ‘sanctity of life’ when discussing cases such as this; it explains why we think it almost always wrong to cause the death of another.  However, in deciding how we should live our lives, other principles are also required - rights of autonomy, self-determination and human dignity.  The problem is that in many situations these rights are not compatible - the patient who refuses life-saving medical treatment is exercising the right to self-determination but, in the eyes of some, committing an offence against the sanctity of life. 

In this case a decision has to be made between conflicting rights - that of the sanctity of life and that to human dignity.  In choosing human dignity it may be thought by some that a lethal injection would be more preferable than treatment withdrawal; this ignores the fact that the sanctity of life involves an added ‘principle of inviolability’ against intrusion by an outsider, so that, even if requested, we would not be entitled to end a patient’s life by lethal injection.

This distinction is complicated somewhat by a further ethical principle that we should show kindness to another.  This principle is manifested in the most basic way, in the obligation to provide food and shelter to the helpless; so that if someone starves a child or invalid in his care, to death we treat him as if he had introduced an external agency.  In normal cases there is no moral difference between the prohibition on violating the person and the positive obligation to act with humanity towards the helpless but there are two exceptions.  Unlike the prohibition on violating the person which is absolute - it was this principle which was violated by Dr. Cox[xvii] - the duty to provide care ceases when such care can provide for no humane purpose.  The duty to provide care is also restricted to what one can reasonably provide; health resources are not limitless and choices must be made; this aspect of the case was not argued but may be of importance for future cases.  The important distinction is not the barren one between ‘act’ and ‘omission’, nor that between ‘medical treatment’ and ‘medical care’, but between introducing an external agency to cause death and not doing so.

It was suggested that because Tony Bland was unconscious, he had no interests to be protected but this shows a lack of understanding of how people intuitively perceive interests as is shown, for example, by how we respect the wishes of the dead even though they would never know that their wishes had been ignored.  The interests of a patient also embrace having a peaceful and dignified death.

The High Court laid some emphasis on the fact that its decision was in accord with the views of the BMA and with good medical practice; Lord Hoffman stated, however, that ‘I would expect medical ethics to be formed by the law rather than the reverse’;[xviii] the decision before the court is a purely legal or moral one which does not require any medical expertise and is therefore appropriate to the court. 

 

The House of Lords

 

(The judgement that ANH be withdrawn, was unanimous.)

Lord Keith

 

Lord Keith first reviewed the cases In re F [xix] and In re J. [xx]

In In re F, the House of Lords held that it would be lawful to sterilise a female mental patient who was incapable of giving consent to the procedure on the grounds that such would be in the  patient’s best interests as it would enable her life to ‘be fuller and more agreeable’.

In In re J,  the House of Lords held that it would be lawful to withhold lifesaving treatment from a young child in circumstances where the child’s life, if saved, would be racked by pain and suffering.

In both these cases it was possible to make a judgement as to the best interests of the patient; the difficulty in the present case is because Tony Bland, being insensate, must be completely indifferent as to whether he lives or dies.  The decision as to whether the treatment confers any benefit is essentially one for the medical practitioners in this case.

As to whether the continued feeding is ‘medical treatment’; regard should be had to the whole regime, including the artificial feeding, which keeps Tony Bland alive and that is undoubtedly a ‘medical treatment’.

 

Lord Goff

 

Lord Goff held that in certain circumstances the principle of the sanctity of human life must yield to the principle of self-determination; an example of such is when a patient refuses consent to life-sustaining medical treatment; one consequence of this is that there is no absolute obligation on a doctor to prolong the life of his patient regardless of the circumstances.

The question at the heart of the present case is whether what is being suggested is in the best interests of the patient; the question is not whether it is in his best interests that he should die but rather whether it is in his best interest that his life should be prolonged by this form of medical treatment.  A further distinction can be drawn between cases where - as in In re J - a balancing operation can be performed, and cases where the patient is totally and permanently unconscious; in these latter cases it is the futility of the treatment that justifies its withdrawal.

In US courts, the ‘substituted judgement’ test has gained favour and it generally involves a detailed investigation into the patient’s views and preferences; this test does not form part of English law and the ‘best interests’ test should be the appropriate guide.

 

Lord Lowry

 

Lord Lowry held that the real nub of this case lies in the suggestion that the duty to feed a helpless person is something which exists independently of all questions of treatment; against this, it can be argued that the overwhelming verdict of medical opinion worldwide is that these questions cannot be separated.  The suggestion is based on a faulty premise namely that feeding in order to sustain life is necessarily for the benefit of the patient so the theory of a ‘duty to feed’ is based on a misapprehension.  ANH should be withdrawn and - even though there is an intention to bring about the patient’s death - there is no guilty act; this is because were the doctor to continue to give ANH, he would be guilty of an unlawful act as he would not be acting in the best interests of the patient. 

Lord Lowry considered that this judgement may rely on a ‘distinction without a difference’ and legislation is required to resolve this question and help bring ‘old law’ and ‘new medicine’ again into harmony.

 

Lord Browne-Wilkinson

 

Lord Browne-Wilkinson held that the law in this area must, to be acceptable, reflect the moral attitudes of society; but this is a task for parliament, not for the courts.  It is for parliament to decide the broader issues, such as the limited nature of resources and the fact that the precise time of death may have serious implications for others e.g. as to the amount of damages recoverable or the rights to succession or criminal liability.[xxi]  Accordingly it is imperative that legislation to resolve these issues, be introduced.  The only solution open to the court in the present case is to apply the existing law even though the result may be both legally and morally unsatisfactory.

Lord Browne-Wilkinson asked whether - since the whole purpose of stopping artificial feeding is to bring about the death of Anthony Bland - this constitutes murder?  He answered this question by placing reliance on the distinction between and act and an omission: if the withdrawal of ANH is an act it is murder; if it is an omission, and the doctors are under a duty to provide ANH, it is murder; but if they are not under such a duty, then it is not murder.  The removal of ANH, although it wears the appearance of an act, is in reality an omission.  It is not in the best interests of Tony Bland to provide ANH, therefore the doctors are under a duty not to provide it; therefore, they are not in breach of the law in refusing to continue to provide ANH.

 

Lord Mustill.

 

Lord Mustill held that the conclusion that ANH can be withdrawn depends crucially on the legal distinction between an act and an omission.  Using this distinction as the strategy to enable a resolution of the problem occasions an acute sense of unease because it may accentuate the distortions of a legal structure which is already both morally and intellectually misshapen.  There have been attempts to suggest that if ANH is withdrawn, Tony Bland’s death will not have been caused by the doctors but by the Hillsborough disaster.  This is a manipulation of the doctrine of causation and is misplaced; the resolution of the issue is to be found - not in an analysis of the doctrine of causation - but in deciding whether the withdrawal of ANH is itself lawful.

Lord Mustill held that the proposed course of action is not in Tony Bland’s best interest because, in fact he has no interests of any kind.  Thus, although the termination of his life is not in his best interests, his best interests in being kept alive - which originally justified the initiation of treatment - have also disappeared, taking with them the justification for the continuance of the non-consensual treatment.  Absent a duty, the omission to perform what had been a duty, is not unlawful.

Lord Mustill noted the suggestion that the duty of the state to preserve life may be overridden in situations where the ‘quality’ of life is diminished by disease or incapacity; this should be firmly rejected: “This is the first step on a very dangerous road indeed, and one which I am not willing to take.” [xxii]

 

3. Frenchay v S [xxiii]

 

Facts::- In 1991 a young man took a drug overdose which resulted in him sustaining severe brain damage; he was diagnosed as being in a PVS and tube feeding was necessitated.  Subsequently his gastrostomy tube had become disconnected and an operation to insert a new tube was required.  The patient’s doctor believed that such an operation would not be in the patient’s best interest.  Other medical opinion was given to the effect that the patient’s quality of life was nil and that there was no hope of recovery.  The judge granted the declaration sought.

The guardian ad litem[xxiv] appealed on the grounds that:

(i)          the legal procedure adopted had deprived him (the guardian) of sufficient time to explore the patient’s situation;

(ii)        the judge had placed too great a reliance on the doctor’s assessment of the patient’s ‘best interests’,

(iii)       there was reason to question the diagnosis of PVS.

 

Held::- Sir Thomas Bingham held that the issue to be determined in cases of treatment withdrawal was the best interests of the patient; that, although the court had the ultimate power to determine the patient’s best interests, it would be slow to interfere with the medical assessment of these unless a substantial doubt had been established.  In the instant case, there was no reason to doubt the doctor’s assessment; it was, however, important that it not be automatically assumed that what was said by the doctor to be in the patient’s best interest, is in the patient’s best interest. 

When a hospital makes an application to the courts seeking permission to withdraw treatment, time should - except in cases of emergency where such was not possible - be afforded to the Official Solicitor to obtain independent medical opinion.

Sir Thomas Bingham held that the Bland decision - as that court was at pains to emphasise - applied only to the facts which were before it; hence, it was important to ensure that this was a case of true PVS and not one of those where ‘glimmerings of awareness’ - as mentioned in the Bland judgements - might be present.  He held, that though the evidence in the present case was not as unanimous or emphatic as in the Bland case - particularly in that one professor’s report stated that the patient ‘appears to suffer pain but it is not obvious where this is originating’,[xxv] which was a view shared by the nurses - the weight of the evidence, particularly that of the doctors who had cared for the patient longest, was that he was in a PVS.

Waite LJ., Gibson LJ., concurred.

 

4. Re G [xxvi]

 

Facts::-  In 1991 G, a married man then aged 24, had a serious motorcycle accident; he never regained consciousness and was diagnosed as being in a PVS.  This diagnosis had been confirmed by four leading consultant neurologists including Professor Jennett and Dr. Andrews.  Dr Andrews’ report, which had been commissioned by the Official Solicitor, concluded that G was in a more profound PVS than was Tony Bland.  Although the patient’s wife reluctantly agreed to a withdrawal of ANH, his mother - believing that her son had some awareness - did not.  The judge at first instance permitted the withdrawal of feeding. 

This decision was appealed by the mother.

Held::- (per Bingham, M.R.)  The patient’s mother had based her belief that her son had some awareness on the fact that he became distressed by discomforts such as chest infections and that he could be calmed by the presence and care of his family.  Sir Thomas Bingham, relying on Dr. Andrew’s report, considered that these responses were reflex in nature and not evidence of any underlying consciousness; this had also been the view of Professor Jennett who had examined G at the insistence of G’s mother.

The court accepted the unanimous medical evidence that G had no awareness and held that a right of veto on the decision to withdraw ANH would place an appalling burden on any relative and that accordingly G’s mother could not have such a veto.  It was decreed that ANH should be withdrawn.

 

5. Re D (Medical Treatment) [xxvii]

 

Facts::- Miss D, a 29 year old university student, had as a child suffered from hydrocephalus; in 1995 she had been involved in a car accident leaving her paralysed and with severe mental problems.  She was cared for by her parents but suffered a seizure and was hospitalised where she was again treated for hydrocephalus. 

She finally recovered wakefulness but there was a dispute as to whether she fulfilled the criteria for the diagnosis of PVS because she appeared to track moving objects with her eyes, she flinched in response to gestures and reacted to the feeling of ice on her body.  The Official Solicitor argued that Miss D’s responses showed that she was not in a PVS; Professor Chadwick, a medical expert, was of the opinion that these movements were simply ‘primitive reflexes’ showing no evidence of consciousness.

Her feeding tube had become disconnected and application was made to the court for directions as to whether an operation should be performed to reinsert the tube.  She was at present being given fluids intravenously.  Her mother and her carers were of the opinion that the operation should not be performed.

Sir Stephen Browne gave judgement in the High Court.

Held::-  That, as all the medical consultants and family agreed, Miss D had no awareness and as there was ‘no possibility for a meaningful life whatever’,[xxviii] that Miss D was in reality in a PVS and it was in the patient’s best interests not to operate.

Sir Stephen stressed  that he was not extending the list of cases where a declaration for the withdrawal of ANH could be considered: “The court recognises that no declaration to permit or sanction so extreme a step could be granted where there is any real possibility of a meaningful life continuing to exist.” [xxix]

 

The non-PVS cases

 

6. In re F. (mental patient: sterilisation) [xxx]

 

N.B. ::- The judgements in the Bland case relied on In re F as authority for the proposition that the criterion to be used in the medical treatment of incompetents was their ‘best interests’.

 

Facts::- A 36 year old mentally handicapped woman ‘F’ with the mental age of a child, lived in a mental hospital where she had formed a sexual relationship with a male patient.  The hospital staff considered that she would not be able to cope with the demand of pregnancy and of giving birth and that - because it was not desirable to further restrict her liberty and because all other forms of contraception were unsuitable - it was in her best interests that she be sterilised.  F’s mother agreed with the proposed course of action.

The application was granted. 

The Official Solicitor appealed to the House of Lords.

Held::- that the parens patriae jurisdiction of the English courts over incompetent adults had been implicitly removed by statute.  The court laid down the principle, based on the law of necessity, that a doctor can lawfully treat an incompetent adult if it is in the patient’s best interests that he do so. 

The court stated that it was highly desirable that in similar cases an application be made to the High Court for a declaration as to the legality of such proposed procedures.

 

7. Re B (a minor)(wardship: medical treatment)[xxxi]

 

N.B.::- In the Ward case counsel for the Attorney General, referring to Re B, submitted that  "... the case uniquely illustrates why the quality of life should not be adopted as a test." [xxxii]  None of the judgements in the Ward Case gave any detailed consideration to the decision in Re B.

 

Facts::- The case concerned a week old baby girl who had been born with Down Syndrome. The child had an intestinal blockage which could be cured without difficulty by a simple operation; her life expectancy would then be 20 to 30 years.  The child would die in a matter of days without the operation.  The child’s parents refused consent for the operation believing it not to be in the child’s best interests that she should survive because she would be handicapped both mentally and physically. 

There was a difference of medical views as to whether the parents’ wishes should be respected.  The judge at first instance gave consent for the operation but subsequently[xxxiii] a further difference of medical opinion developed and the matter again came before the judge; he then refused consent for the operation. 

This decision was appealed to the Court of Appeal.

Held::- That the correct question to be determined by the judge was not whether the parents’ wishes should be respected but whether what was proposed was in the child’s best interests.  Because the proposed operation was in the child’s best interests, it should be performed.

 

Templeman LJ.

 

Templeman LJ, held that the interests of the child were paramount and that the issue before the court was:

“...  to decide whether the life of this child is demonstrably going to be so awful that in effect the child must be condemned to die [xxxiv] ... There may be cases ... of severe proved damage ... where the life of the child is so bound to be full of pain and suffering that the court might be driven to a different conclusion, but in the present case ... I have no doubt that it is the duty of this court to decide that the child must live.” [xxxv]

He appeared to draw a distinction between ‘cabbage cases’ - where people’s faculties are entirely destroyed - and those of other severely mentally and physically handicapped with the suggestion that a different rule applied to these cases.[xxxvi]  In Re J [xxxvii] Lord Donaldson also accepted that special consideration might apply to such cases but Lord Balcombe strongly disagreed, stating:

“ ... I would not accept that the so-called 'cabbage' cases could be treated as an exception to this suggested rule,[xxxviii] since in deciding that a child whose faculties have been destroyed is a 'cabbage' of itself involves making a judgement about the quality of that child’s life.” [xxxix]

 

Dunn LJ.

 

Dunn LJ, noted that no reliable prognosis as to the child’s future could be made until she was two years old and that:

“... because there is no evidence that this child’s short life is likely to be an intolerable one.  There is no evidence at all as to the quality of life which the child may expect ... the child should be put into the same position as any other mongol child and must be given the chance to live an existence.” [xl]

 

8. McKay v Essex Health Authority [xli]

 

Facts::- A mother contracted rubella during pregnancy and, as a result, her child was born severely disabled.  The rubella had not been diagnosed and, arguing that this was due to the negligence of the Health Authority, both the mother and child sought damages.  Counsel for the child based his claim on a number of grounds one of which was that “of being allowed to enter life damaged”; he argued - on the authority of Re B - that where a child’s disabilities are so severe that it can be properly stated that she would be ‘better off dead’, the duty of care involves the duty to terminate its life. 

The question before the court was whether the child had a right to claim damages because of the non-termination of his mother’s pregnancy.

 

Held::- The unanimous opinion of the court was that the child’s claim for what has been called a ‘wrongful life’, disclosed no reasonable cause of action.

 

Stephenson LJ.

 

Stephenson LJ., held that the child’s real complaint was not that she had been born but that she had not been born whole; a ground of action could only arise if there was a right to be born whole. To impose a duty on others to ensure such a right would be contrary to public policy.  It would mean that the life of a handicapped child should be regarded not only as less valuable than that of a normal child but so much less valuable that it was not worth preserving.  It would also entail the possibility of a child having a ground of action against her mother for not having had an abortion.

The claim also failed on the ground that the damages were not only difficult but impossible to assess in that the damages sought under this head were necessarily based on a comparison between the child’s actual condition and her condition if she had not been born at all.

In considering the submission based on Re B, he stated:

“Like this court ... in Re B ... I would not answer until it is necessary to do so the question whether the life of a child could be so certainly 'awful' and 'intolerable' that it would be in its best interests to end it and it might be considered that it had a right to be put to death.  But that is not this case.  We have no exact information about the extent of this child’s serious and highly debilitating congenital injuries; the judge was told that she is partly blind and deaf, but it is not and could not be suggested that the quality of her life is such that she is certainly better dead ... ” [xlii]

 

Ackner and Griffiths LJJ.

 

Ackner and Griffiths LJJ, held that the issue of damages was impossible to assess and accordingly, the claim should fail.  Re B was an urgent application made in vacation, and the judgements were ex tempore; in his judgement in that case Templeman LJ. was saying no more than that the court could, in certain circumstances, refuse to sanction an operation to prolong life.  The case provides no support for the contentions raised in the present case.

 

9. Re C (a minor)(wardship: medical treatment) [xliii]

 

Facts::- C had, at birth, been taken into care and made a ward of court.  It was subsequently discovered that she had seriously brain damage and was terminally ill.  The court directed that the aim of treatment should be to “... treat the ward to die, to die with the greatest dignity and the least of pain, suffering and distress.” [xliv] rather than to seek to achieve a short prolongation of life. Accordingly, the court decreed that intravenous feeding and the treatment of serious infections was unnecessary.

The Official Solicitor appealed to the Court of Appeal.

 

Held::- That the one inescapable fact is that baby C was dying and nothing the court, or the doctors, can do could alter that fact.  The essential problem was what treatment should be given and the resolution of this was to be found in determining the ‘best interests’ of C.  The best interests of the child require that she be treated in such a manner as to ease her suffering and so as to permit her life to come to an end peacefully and with dignity, rather than in attempting to prolong her life; however, the phrase ‘treat to die’ was misleading. 

The court held that it was inappropriate for it to issue specific instructions as to how this be achieved.

 

10. In re J (a minor) (wardship: medical treatment) [xlv] 

 

Facts::- ‘J’ was an 18 week old baby who had been born prematurely with very severe and irreparable brain damage.  He was epileptic and was likely to develop serious spastic quadriplegia[xlvi] and to be blind and deaf.  Though he may have become able to make sounds to reflect his mood and to smile and cry, he was unlikely ever to speak or develop even limited intellectual abilities.  It was likely that he would feel pain similar to a normal baby.  He was not terminally ill.  His life expectancy was uncertain but he was expected to die before late adolescence.  He had been ventilated twice for long periods, and the prognosis was that, in the absence of ventilation, any further collapse would be fatal. 

The court had decided that, in the event of his ceasing to breath, he should not be reventilated. 

The Official Solicitor appealed on the ground that lifesaving treatment should only be withheld in cases of terminal illness.

 

Held::- The court first summarised the arguments of the Official Solicitor.  He had contended, firstly, that guidance on the approach to adopt in relation to treatment decisions for children had been given:

(i)   in Re C, in relation to children who were dying,

(ii) in Re B, in relation to children who were severely, but not grossly, handicapped but with a substantial expectation of life.

The present case fell between these two and required guidance.

Secondly, he had contended that a court is only entitled to withhold consent to lifesaving treatment either:

(i)  in cases of terminal illness - called the ‘Absolutist Submission’; or,

(ii) where the quality of the child’s subsequent life would be intolerable to that child and ‘bound to be full of pain and suffering’ - called the 'Qualified Submission’.

 

Donaldson MR.

 

Lord Donaldson first clarified the respective roles of the court, the parents and the doctors: neither the parents, nor the court, nor the doctors, can dictate the treatment to be given.  The doctors can suggest; the court, or parents, can refuse to consent to what is suggested; it is therefore, in some measure, a joint decision.

Turning to the ‘absolutist submission’ - and exempting the so-called ‘‘cabbage case’ to which special considerations may well apply’ [xlvii] - Lord Donaldson held that where a child is dying there is no balancing of life against death; what is being balanced is a marginally longer life of pain against a marginally shorter life free from pain and ending in death with dignity.

As to the 'qualified submission’; he held that although the terms ‘intolerable’ and ‘demonstrably so awful’ were used in the judgements in Re B, they should not be taken as a judicial yardstick.  Re B should be understood as asserting that a balancing operation is to be adopted between the pain and suffering which the child will experience if life is prolonged, and the pain and suffering of the proposed treatment itself.  He cited the judgement of McKenzie J. in Re Superintendent of family and Dawson D [xlviii] saying: “This gives effect, as it should, to the fact that even very severely handicapped people find a quality of life rewarding which to the unhandicapped may seem manifestly intolerable”. [xlix]  A particular decision as to medical treatment could be taken which as a side effect will render death more or less likely.  This is not a matter of semantics it is fundamental.  Thus, the use of drugs to reduce pain will often be fully justified notwithstanding that they will hasten the moment of death.

In J’s situation the balancing operation implied that authority for the reventilation should be withheld as to do so was in his best interests.

 

Balcombe LJ.

 

Balcombe LJ., summarised the arguments offered for the ‘absolute submission’; these were:

(i)   the court is unable to evaluate the consequences of death and can thus not apply a balancing operation

(ii)  respect for the sanctity of human life preclude attempts by the court to evaluate the quality of a disabled person’s life,

(iii) the ‘slippery slope’ argument.

Lord Balcombe held that because public policy interests cannot be allowed to prevail over the interests of the individual - whose interests are paramount - and because grounds (ii) and (iii) “... depend on the assertion that public policy precludes any inroad on the sanctity of human life.” [l] these grounds must fail.  McKay[li] was offered as authority for (i) but this is mistaken, McKay is authority only for the proposition that “... the court could not evaluate non-existence for the purpose of awarding damages for the denial of it.” [lii]

Accordingly “... there is no warrant, either on principle or authority for the absolute submission.” [liii]

As to the 'qualified submission’ Balcombe LJ. stated that the argument offered for this was the statement in Re B that:

“... the court can only approve the withholding of lifesaving treatment if it is certain that the life of the child is going to be so intolerable that, on the facts of the case, the court was justified in reaching so drastic a conclusion.” [liv]

This was treating the language used in Re B as if it had been intended to lay down a test applicable to all circumstances, which was clearly not the case.  The only test required is that the ‘interests of the ward are the first and paramount consideration’.[lv]  Adopting a more objective standpoint than Donaldson LJ, he stated that:

“ ... in determining where those interests lie the court adopts the standpoint of the reasonable and responsible parent who has his or her child’s best interest at heart.” [lvi]

Mechanical ventilation is itself an invasive procedure which would cause the child distress; these  procedures carry their own hazards, not only to life but they may cause even greater brain damage.  This has to be balanced against what could possibly be achieved: the chances of preserving the child’s life might be improved, although this was not certain, and account had to be taken of the extremely poor 'quality of life' at present enjoyed by the child.  He dismissed the appeal.

 

Taylor LJ.

 

Taylor LJ. considered that the phrases ‘condemned to die’ [lvii] and ‘put to death’ [lviii] were unfortunate.  He considered, however, that there are extreme cases in which the court is entitled to say ”The life which this treatment would prolong would be so cruel as to be intolerable.” [lix]  The present case is such a case.

 

11. Re R (adult : medical treatment)[lx]

 

Facts::- R was born with a serious malformation of the brain and with cerebral palsy; he subsequently developed severe epilepsy.  At the time of the court application he was 23 years old, had profound learning difficulties and had not developed any formal means of communication; he was believed to be both blind and deaf.  He was unable to chew and his food had to be syringed to the back of his mouth.  The only response to touch appeared when he was cuddled and he then gave an indication of pleasure.  Dr. Andrews gave evidence that R existed ‘in a low awareness state.’  R appeared to respond to pain and suffered from recurrent chest infections.  R’s consultant was of the view that, when the next life threatening crisis occurred, treatment should be withheld to allow R to die with some comfort and dignity.

A ‘Do Not Resuscitate’ (DNR) order had been made by his medical carers with the consent of his family.  R’s carers at the day centre which he attended did not agree that his quality of life was ‘unacceptable’ - a term used in the BMA guidelines on DNR orders - and sought the assistance of the Disability Law Service in seeking a judicial review.

In response, the hospital authorities sought not only a declaration as to the lawfulness of the DNR order, but in addition a declaration that it was lawful to withdraw ANH; this latter application was later withdrawn and permission was sought to conduct a gastrostomy. [lxi]

The question before the court was whether the DNR order was appropriate.

Evidence was given by Dr. Andrews that, in a hospital setting, CPR was effective for only 13% of patients; in a nursing home situation the chances of a successful resuscitation would be almost nil; in addition there was the danger of causing either broken ribs or further brain damage.

 

Held::- Sir Stephen Browne held that there was no question of the court being asked to approve a course aimed at terminating life or accelerating death; there should be no global ‘do not treat’ policy.  However, the facts of this case were very different from the Bland Case.[lxii]

The principle of law to be applied is the ‘best interests’ of the patient as laid down in Re J.  That case held that the court might in appropriate circumstances withhold consent to life-saving treatment.  Taylor LJ, said, in Re J,  that  “ ... the correct approach is for the court to judge the quality of life ... and decide whether such a life would be so afflicted as to be intolerable ... ” [lxiii]  The operative words are ‘so afflicted as to be intolerable’. 

The court judged the DNR order to be in the patient’s best interests (medical opinion being unanimous); it left the decision on the withholding of antibiotics to the judgement of the attending clinician and subject to the consent of R’s parents.  The Court consented to the gastrostomy procedure.

 

12. T (a minor) (wardship: medical treatment) [lxiv]

 

Facts::-  An 18-month-old child, who was not retarded but who suffered from a blockage of the bowel ducts, required a liver transplant.  The liver transplant had a ‘good prospect of success’ and would, if successful, have enabled the child to survive into adulthood.  Such surgery was successful in about 80% of cases.  Without this operation the child would die within a year.

The child’s parents, who were both health professionals experienced in the care of sick children and who were living abroad, had decided against such surgery.  It would have been necessary for the child to return to England for surgery as there were no facilities for such operations in the country in which the family now lived. The child’s mother had judged that the operation, in so far as it might only marginally increase her son’s life expectancy and since it could lead to pain and suffering and since it would lead to disruption in the child’s life, was not in the child’s ‘best interests’.  The parents’ decision not to proceed with the operation was influenced by the outcome of earlier surgery on the child, which had been a failure.

The mother had been urged by two of the child’s consultants to consent to the operation; one of the  consultants had precipitated the legal action as he felt that the mother was not acting in the child’s ‘best interests’.  The High Court decided that the operation should proceed.

This decision was appealed to the Court of Appeal.

 

Held::- that the judge should not have restricted himself solely to medical factors when judging the child’s ‘best interests’; he “... should have considered whether it was in the child’s ‘best interests’ that the mother should be forced to take on the commitment of caring for a child after surgery with which she did not agree.” [lxv]  The decision should be taken by the child’s parents as the child had been ‘entrusted by nature’ to their care.

 

N.B.::- The medical correspondent of The Times noted that the court’s decision might well have the effect of reinforcing the prejudice of parents who often find congenital disease and disability in children very hard to accept.

 

13. Re C (a baby) [lxvi]

 

Facts::- ‘C’ was a 16-month-old baby girl who was suffering from a fatal degenerative disease and was unable to move her arms or legs; she was conscious and recognised and smiled at her parents when they visited.  Medical opinion was to the effect that the disease was fatal, that death usually comes at 18 months in such cases and that the baby’s suffering would increase before death.  The doctors wished to withdraw artificial ventilation.

The babies parents, who were strict Orthodox Jews, refused permission to withdraw the artificial ventilation, as to do so would contravene their religious views.

 

Held::- Sir Stephen Browne decreed that, as there was no dispute as to the medical evidence - which was that disease was fatal and the child was approaching death - it was in the child’s best interests to withdraw artificial ventilation.

“Whilst the sanctity of life is vitally important, it is not the paramount consideration ... that paramount consideration is the best interests of little C ... She has a desperately tragic existence. She is emaciated.  Although she is conscious, there is the prospect of increased suffering as the days go by.” [lxvii]

 

14. Ex Parte Glass [lxviii]

 

Facts::- This case concerned a 12 year old boy, David Glass, who had been born with hydrocephalus and was profoundly disabled though not to the extent of requiring tube feeding.  Though normally living at home, he had been admitted to a local hospital suffering from breathing difficulties.  He had been kept on artificial ventilation for 23 days and the hospital authorities were of the opinion that resuscitation should not be provided if these difficulties reoccurred.  His mother disagreed with this assessment.

Subsequently, David’s mother had been told that her son was dying and that he had been given diamorphine on the instructions of the hospital authorities.  She forcibly attempted to stimulate her son’s breathing; this was against the wishes of the hospital authorities who believed that this was extremely cruel and that he should have been allowed to pass away peacefully.[lxix]

David Glass recovered and now lives at home.

The boy’s mother sought a declaration from the High Court that:

(i)   her son was entitled to resuscitation if similar circumstances reoccurred; or that

(ii)  the hospital had no authority to withhold treatment against her wishes; or that

(iii) the doctors must, in the absence of her consent, seek court approval before withholding treatment.

 

The High Court

 

Held::- Scott Baker J. refused the declaration ruling that such a sensitive problem was not susceptible to the ‘blunt tool’ of judicial review, particularly when the issues related to a problem which was passed.  He intimated that if difficulties arose in the future it would be desirable, and indeed in everyone’s interest, that the issue should be referred to the High Court before the situation became acute.  The mother appealed this decision.

 

The Court of Appeal

 

Additional Facts::- The court found that David was not terminally ill; some studies suggested a 50:50 chance of living for more than a few years.  Morphine, which depressed respiratory function, had been administered to David against the mother’s wishes and on the instructions of the chief executive of the hospital without having first obtained the sanction of the court.[lxx]

 

Held::- The court reiterated that the appropriate criterion was the best interests of the child; however, in cases where the patient’s family did not agree that a course of action proposed by the patient’s medical team was in fact in the patient best interests, then application must be made to the courts.  Faced with a particular problem the court would answer that problem; however, no decision as to what was a proper course of action would be made in advance of the actual circumstances arising.  The court upheld the judgement of the High Court.

 

Some cases from other jurisdictions

 

Canada

 

15. Re Superintendent of Family [lxxi]

 

Facts::- This case concerned a seven year old boy with severe brain damage which had been caused by meningitis.  The boy suffered from hydrocephalus and had had two operations to unblock a plastic tube which drained excess fluid from his brain.[lxxii]

The boy’s parents opposed the operation on the grounds that he should be allowed to die with dignity rather than endure a life of suffering.  The evidence was that, without the operation, the boy might not necessarily die but might live for years and with a real possibility that he would endure a state of progressive disability and pain.  The boy, although severely handicapped, was not as severely handicapped as some in his class at the hospital school.  If the operation was performed he would probably continue to live as he had done before and would do so for some years more.

 

Held::- (per McKenzie J,) That this was not a ‘right to die’ situation where the courts are concerned with the terminally ill but rather raised the question of whether the boy has a right to receive appropriate medical care of a simple kind which would assure to him the continuation of his life.  The operation should proceed because the presumption must be in favour of life but also because the court could not sanction the withholding of treatment when such a withholding could result not necessarily in death but in a more impoverished and agonising form of life.  Judge McKenzie added:

“I do not think that it lies within the prerogative of any parent or of this court to look down upon a disadvantaged person and judge the quality of that person’s life to be so low as not to be deserving of continuance. The matter was well put in an American decision - Re Weberlist [lxxiii] where Justice Ashe said:

‘There is a strident cry in America to terminate the lives of other people - deemed physically or mentally defective ... Assuredly one test of civilization is its concern with the survival of the 'unfittest', a reversal of Darwin’s formulation ... In this case the court must decide what its ward would choose, if he were in a position to make a sound judgement.’

This last sentence puts it right.  It is not appropriate for an external decision maker to apply his standards of what constitutes a liveable life and exercise the right to impose death if that standard is not met in his estimation.  The decision can only be made in the context of the disabled person viewing the worthwhileness or otherwise of his life in its own context as a disabled person - and in that context he would not compare his life with that of a person enjoying normal advantages. He would know nothing of a normal person’s life never having experienced it.” [lxxiv]

 

N.B.::-This case was mentioned and distinguished in Re C by both Donaldson and Balcombe L JJ. 

In Re J, Donaldson J. quoted with approval the extract from the judgement of McKenzie J. (supra)

 

16. Nancy B. v Hotel-Dieu de Quebec [lxxv]

 

Facts::- Nancy B. who was aged 25, had suffered from locked-in syndrome for two and a half years.  She could breath only with the assistance of a respirator; her intellectual capacity and mental competence were unaffected.  She had been informed that her condition was irreversible.

She applied to the court seeking to establish her right to refuse any further treatment.

 

Held::- That the technique of putting a person on a respirator is ‘medical treatment’.  That, as no medical treatment may be given to a competent person without their consent, Nancy B. has the right to refuse any further use of a respirator.

 

New Zealand

 

17. Auckland Area Health Board v AG [lxxvi]

 

Facts::- The case involved an application by doctors concerning the withdrawal of a ventilatory support system from a patient ‘Mr. L’ who was diagnosed as being in an extreme form of locked-in syndrome.  The patient was totally unable to move and there was no prospect of recovery.  There was no possibility of communication with the patient even by using primitive means; his eyeball muscles were inert and his pupils were fixed and dilated.  It was not known whether Mr L could see, the nerves involving hearing no longer functioned.  As best as could be ascertained Mr. L’s brain was in a drowsy, semi-working, state, but this was probably due to sensory deprivation rather than to any brain damage.  It was the unanimous opinion of the eight specialists, who had examined Mr. L, that ventilation should be withdrawn as not being medically justified; this was also the opinion of the hospital ethics committed; the patient’s family agreed with this proposal.  In the event of ventilation being withdrawn death would be instantaneous and painless.

The doctors sought a declaration from the court that the removal of ventilation would not be unlawful.[lxxvii]

 

Held:::- (per Thomas J.) Counsel for the doctors and for the Attorney General had both argued that decisions such as contemplated in the present case were essentially clinical decisions and best resolved as such without recourse to the courts.  The judge agreed with this submission, suggesting that such cases do not lend themselves to the ‘close analysis and refinements which are the stock in trade of lawyers’; in a furtherance of this approach he declined to consider the case as an exercise of his parens patriae jurisdiction, preferring to resolve the case by analysing the proposed course of action in terms of its ‘lawfulness’.

The judge discussed recent advances in the definition of death, in particular the criteria for brain death; he attempted to draw out ‘the essence’ of these criteria and apply it to the instant case.  He concluded that a person - if they are brain dead - is considered to be ‘dead’ because the brain has, at that point of time, irretrievably lost both the ability to regenerate and to provide the route by which messages to and from the body are transmitted.  He posed the question: “How different is Mr. L?”  He suggested that the situations of Mr L and of those who are brain dead could both be described by the phrase ‘the living dead’:

“Whether a body devoid of a mind or, as in the case of Mr L, a brain destitute of a body, does not matter in any sensible way.  In their chronic persistent vegetative condition [lxxviii] they lack self-awareness or awareness of their surroundings in any cognitive sense.  They are ‘the living     dead’.” [lxxix]

Next turning to the question of causation; counsel had urged that the proposed course of action could not be considered as causing the death of Mr. L, the judge however, found such an analysis to be unhelpful.  He considered the example of a polio victim unable to breath and being ventilated, but desirous of remaining alive; it is not acceptable to say of a doctor, who in such a case did in fact remove ventilation, that he did not cause the death of the patient.  The question must be resolved, not by an analysis of cause but by an analysis of the lawfulness of the proposed course of action.

Thomas J., next considered the meaning of the term ‘necessities’.  Medical treatment is undoubtedly included in the phrase ‘necessities’; however, in the present case - in that the only function of the treatment is to defer death - it could not be considered a ‘necessary of life’.  However,  even if it must be so considered, then its withdrawal in the present case is done with ‘lawful excuse’.  This is so because it is unacceptable to suggest that a doctor adhering to what is considered ‘good medical practice’ should not at the same time be provided with a ‘lawful excuse’; thus, the fact that, in Mr. L’s case, the medical consensus is that ventilation should be withdrawn, is itself evidence that what is being proposed is ‘with lawful excuse’.  Introducing a distinction between ‘cause’ and ‘legal cause’, he concluded that although the doctors in embarking on the proposed course of action may be held to ‘cause’ death, they did not ‘legally cause’ death.[lxxx]