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

 

Chapter 6: The theoretical approach adopted by the courts to ‘end-of-life’ decisions for PVS patients

 

 

This chapter analyses the conceptual structures used by the Irish and English courts in their consideration of ‘end-of-life’ decisions for PVS patients.  It is divided into 5 sections.

Section 1 discusses some of the legal and constitutional constraints under which the courts operate when making judicial decisions.  Section 2 outlines some possible conceptual structures within which the Ward and similar decisions might have been resolved.  Three such structures are identified; the first centres on the rules relating to medical treatment and its withdrawal; the second centres on the rules relating to liability for the causing of death, the third centres on rules relating to the allocating of scarce resources.  Section 3 considers the method of analysis used in the Ward and Bland cases; Section 4 the analysis used in subsequent PVS cases.  Section 5 draws some conclusion from the discussion.

 

Section 1: Legal constraints on the power of the courts.

 

The courts, in tackling ‘end-of-life’ decisions, do not have an unrestricted discretion as to the solutions they adopt.  They are constrained by legal and constitutional theory.  They may, as in the Bland case, acknowledge that there are other, better, ways of resolving these problems than by means of ‘treatment withdrawal’, but decide that it is not within their legal competence to impose such solutions.

In constitutional theory the roles of the legislature and of the courts, are strictly separated; the function of the legislature is to make law and that of the courts is to apply the law so made.  Theoretically, the courts have no role in the creation of law, their role is simply one of interpretation. In practice however, the situation is not so clear cut; the courts are often faced with the problem of applying existing law to situations[i] which have not been foreseen by the legislators and, rather than refusing to deal with such situations until legislation has been enacted - a path which would rapidly bring the judicial system to a halt - the courts have developed various mechanisms[ii] to facilitate the closing of the inevitable lacunae that occur in legislation, but always conscious of the fine line that divides ‘creative interpretation’ of existing law from a declaration of new law - a role which is the sole prerogative of the legislature.  The cumulative effect of such a process of creative interpretation is a substantial body of judge-made law; indeed, much of what is termed ‘the common law’ is just such a body of law.

In constitutional law - i.e., the Constitution and its judicial interpretation - the same theoretical prohibition on judicial law-making applies.  However, in practice - because a constitution is normally formulated in a more abstract fashion than is ordinary legislation - there is considerably more scope for judicial law-making than in non-constitutional matters, though again this is under the guise of interpretation.

These remarks are made to indicate the nature of the response of the courts when presented with a problem which has not previously been the subject of legislation or of judicial consideration.  In such a situation, the judicial approach is not one of radical innovation, nor of abstract speculation in an effort to determine the most fitting solution - such would be the approach of a legislature - but is rather one of attempting, by analogy or by reinterpretation or by some such similar device, to situate the problem within the corpus of existing law. 

There may be a number of ways that such a novel problem may be so situated, but whichever method of analysis is chosen it is incumbent on the courts to portray their decision as somehow flowing naturally from - ‘logically implied by’ is too strong a phrase - an existing body of law.

Such differing ways of analysing the problem may be more accurately described in terms of the differing ‘conceptual structures’ within which the particular problem may be described, analysed and resolved.  The discussion above could then be summarised in saying that the courts must, in analysing a problem, utilise not any conceptual structure, but only those which already have an accepted jurisprudential legitimacy.

 

Section 2: Possible conceptual structures for the resolution of the Ward case[iii]

 

To date the US, the English and Irish courts have exhibited a uniformity of approach in considering ‘end-of-life’ decisions for PVS patients.  The Irish courts (in the Ward case) the English courts (in the Bland and subsequent cases) and the US courts have all sought to use the withdrawal of medical treatment as the conceptual framework to resolve these questions.  The unanimity is such that even to speak of choosing the withdrawal of medical treatment as the conceptual framework to be used seems somehow inappropriate; it is as if treatment withdrawal was the ‘natural’ and inevitable way of tackling these problems.  It is important to see that this is not so and that alternative conceptual structures are available which would also have permitted a resolution of the problem.[iv]  Unless it is acknowledged that such other conceptual structures exist, then the difficulties which occur in relation to the treatment withdrawal structure will, if they are unresolved within that structure, be regarded as intrinsic to the problem itself. 

There are at least three ways in which the problems relating to ‘end-of-life’ decisions for PVS patients can be made amenable to a legal analysis. 

(i)          The problem can be viewed as one essentially concerned with medical treatment and its withdrawal.  A resolution to the problem can be found by clarifying the rules under which treatment may be withdrawn from an incompetent[v] patient in situations where the result of such withdrawal is the death of the patient. 

(ii)        The problem can be viewed as one essentially concerned with the rules assigning legal responsibility for the causing of death.  A resolution of the problem can be found by restating these rules so that certain closely defined acts resulting in the death of a PVS patient could be distinguished from other acts resulting in death.  In circumstances to be closely defined, either such acts would not be illegal, or a defence to a charge of wrongful killing would be available.  Such a method would have the effect of separating ideas of causality from legal responsibility and blameworthiness.[vi]  Assistance in the making of such a restatement can be found from the concept of ‘a good death’ and the argument - developed in Part 3 - that the achievement of such a death is a positive good.  Lord Hoffman’s suggestion[vii] that amongst the interests of a patient needing protection was that of a peaceful and dignified death gives some support to this perspective.  Alternatively - and this argument is also developed in Part 3 - by utilising the philosophical concept of ‘personhood’ a distinction can be drawn between being ‘human’ and being a ‘person’.  The conditions under which a PVS patient might be said to have lost their personhood can be examined; as can the consequences that might flow from such a loss.  In particular, the rules relating to the causing of death of patients who have lost their personhood can be prescribed.  Differences in status such as that between citizens and non-citizens, or between the mentally competent and the incompetent are an accepted part of the law and thus it is not an impossibility that the concept of personhood might find an acceptable place in juridical thinking.

(iii)       Lastly, the problem can be viewed as one essentially concerned with distributive justice and the allocation of scarce resources.  Such a perspective would recognise that the resources required to sustain a PVS patient over many years are considerable, and that the allocation of such resources to a PVS patient entails a de facto limitation on the medical care available to others.  The rights of these other patients must be balanced against the rights of the PVS patient.

 

In the Ward case, the Irish courts in seeking a judicially acceptable framework within which to situate the problem before them, chose to use the corpus of existing law concerned with medical treatment and its withdrawal; in this they followed the example of other jurisdictions, most notably that of the US and England.  The Irish court did not use the ‘WMT’ framework[viii] reluctantly; they did not find that it was in any way inappropriate to the problem before them, nor did they foresee that the adoption of such a framework might have unwanted ‘side-effects’ in relation to future cases.

In the Bland case the English courts - in contrast to their Irish counterparts - explicitly acknowledged that alternative analytic structures existed for the consideration and resolution of ‘end-of-life’ decisions for PVS patients.  They acknowledged - courageously - that the problem could be resolved by a re-examination of the rules relating to the legal responsibility for the causing of death or by allowing the law to take cognisance of the fact that health resources are strictly limited; but they considered that the implementation of such alternatives would have occasioned a departure from existing law of too radical a nature to be imposed by the courts and such that it necessitated legislation. 

Lord Browne-Wilkinson, for example, stated:

“Where a case raises wholly new moral and social issues, in my judgement it is not for the judges to seek to develop new, all embracing, principles of law ... Moreover, it is not legitimate for a judge ... to take into account the wider practical issues as to allocation of limited financial resources ... For these reasons, it seems to me imperative that the moral, social and legal issues raised by this case should be considered by Parliament ... The function of the court ... is to determine this particular case in accordance with the existing law, and not seek to develop new law laying down a new regimen.” [ix]

The House of Lords recognised that the only framework available to them to deal with the problem was that of ‘treatment withdrawal’ and that this was a less than ideal structure within which to consider it.  Lord Mustill, for example, stated:

“My Lords, I must recognise at once that this chain of reasoning makes an unpromising start by transferring the morally and intellectually dubious distinction between acts and omissions into a context where the ethical foundations are already open to question.  The opportunity for anomaly and excessively fine distinctions, often depending more on the way in which the problem happens to be stated than on any real distinguishing features, has been exposed by many commentators” [x]

Lord Browne-Wilkinson concluded his judgement by saying:

“I am very conscious that I have reached my conclusions on narrow, legalistic, grounds which provide no satisfactory basis for the decision of cases which will arise in the future where the facts are not identical ... the conclusion I have reached will appear to some to be almost irrational.  How can it be lawful to allow a patient to die slowly, though painlessly, over a period of weeks from lack of food but unlawful to produce his immediate death by lethal injection? ... I find it difficult to find a moral answer to that question.  But it is undoubtedly the law  ... ” [xi]

Conclusion 6 -1 : The court in the Bland case, in contrast to that in the Ward case, acknowledged that the methods of analysis (i.e. withdrawal of medical treatment) available to them for the resolution of the problem were not ideal; that other more appropriate methods existed but were not available to the courts until appropriate legislation was enacted.

 

Let us now consider the attitude of the courts - in the Ward and Bland cases - to each of the suggested frameworks.

 

Section 3: The method of analysis used in the Ward and Bland cases.

 

This section is divided into three subsections.  Subsection 1 considers the difficulties encountered by the courts in using ‘medical treatment’ as the conceptual framework for analysing the problem underlying both the Ward and Bland cases; Subsection 2 considers the attitude of the Ward and Bland courts to the possibility of reformulating the rules relating to the causing of death, in the search for a solution; Subsection 3 considers the attitude of the Ward and Bland courts to using the concept of ‘scarce resources’ as a mechanism to resolve the problem.

 

Subsection 1: The Ward and Bland decisions: the medical framework.

 

The discussion in this subsection is structured as follows:

(i)          Some possible reasons for the Ward court preferring the ‘WMT’ framework.

(ii)        The legal minefield to be navigated in order that ‘WMT’ not be legally deemed to be murder: the distinctions between ‘motive’ and ‘intention’, between ‘direct’ and ‘indirect’ intention, between ‘act’ and ‘omission’.

(iii)       The legal conditions necessary to justify the withdrawal of ANH;[xii] the questions: ‘Who should exercise the right to refuse treatment on behalf of an incompetent?’ and ‘What criteria should be used?’

(iv)       An example is given to help ‘de-medicalise’ the problem underlying the Ward and Bland cases.  This example shows that the medical setting within which the problem is usually viewed is contingent with no necessary connection to the underlying problem.  It is argued that, because of this dependence on contingent facts, the choice of the ‘WMT’ framework is inherently flawed.

 

(i)  Why was ‘withdrawal of medical treatment’ the preferred framework?

 

Let us examine some of the reasons why the choice of the medical treatment’ framework seemed so compelling to the Ward court.  As presented to the courts the Ward case was redolent of medicine.  A botched medical operation was the cause of the original problem; the Ward had been hospitalised and cared for by medical personnel for over twenty years and she was under continuing medical care; the intervention sought from the courts - and the suggested resolution to the problem, the withdrawal of ANH - was expressed in a terminology[xiii] which was purely medical.  Furthermore, the courts regarded these cases as something of a poisoned chalice; by interpreting the problem as a purely medical one of treatment withdrawal, and seeking comfort from the distinction between direct and indirect intention, they were able to put to one side consideration of the fact that the goal[xiv] of the withdrawal of ANH was the inevitable death of the patient.[xv]  The issue for the courts then became the withdrawal of treatment from the patient rather than the occasioning of the death of the patient or, more euphemistically, the ‘allowing’ of the patient to die, thus permitting the courts to achieve some psychological distance from that which is doubtlessly the central issue of the problem - the death of the PVS patient.  This need to psychologically avoid the actuality of the problem was considerably more evident in the Ward case than in the Bland case.  In the Bland case, for example, Lord Browne-Wilkinson acknowledged that:

“ ... the whole purpose of stopping artificial feeding is to bring about the death of Anthony Bland” [xvi]

Lord Mustill fully acknowledged that the treatment withdrawal would cause the death of Tony Bland:

“I am bound to say that the argument[xvii] seems to me to require not manipulation of the law so much as its application in an entirely new and illogical way.  In one form the argument presented ... asserts that the cause of Anthony Bland’s death ... will be the Hillsborough disaster ... it is in my judgement perfectly obvious that the conduct will be, as it is intended to be, the cause of death ...” [xviii]

To both Lords Browne-Wilkinson and Mustill, the issue before the court was not whether the withdrawal of ANH caused the death but whether the withdrawal was lawful; both concluded that it was, though for differing reasons. 

In contrast, in the Ward case Hamilton CJ. stated:

“The true cause of the Ward’s death will not be the withdrawal of such nourishment but the injuries which she sustained ... in 1972.” [xix] and  “It is important to emphasise that the court can never sanction steps to terminate life.” [xx]

Denham J. stated:

“If this court determines that the order of the High Court be upheld then ... the ward would die shortly as a result of the medical catastrophe which occurred 23 years ago.” [xxi]

Conclusion 6 -2 : Part of the attractiveness of the ‘WMT’ to the Ward court was that it offered to the court the possibility of evading responsibility for occasioning the death of the Ward.  This evasion was accentuated by the decision of the court that an application to the court is not required in future cases where the withdrawal of ANH is contemplated; this was in contrast to the Bland court  which did lay down such a requirement.[xxii]

 

(ii) The legal minefield: Is the withdrawal of ANH legally murder?

 

There are a number of legal rules and distinctions which are of central importance to any discussion of treatment withdrawal resulting in the death of the patient; the most important of these are the distinction between ‘motive’ and ‘intention’, between ‘direct intention’ and ‘indirect intention’, between ‘act’ and ‘omission’; and the legal rules relating to omissions which cause death.

 

Motive

 

The law is concerned with the prohibition of certain acts; it is not concerned with a determination of the supposed moral justification, if any, for the commission of such acts; thus it is not concerned with motive; in Smith and Hogan’s Criminal Law - which is a leading authority on criminal law - it is stated that:

“ ... it is entirely irrelevant to his guilt that he had a good motive.  The mother who kills her imbecile and suffering child out of motives of compassion is just as guilty of murder as is the man who kills for gain.” [xxiii]

Equally, the doctor who kills his patient out of compassion is as guilty of murder as the doctor who kills his patient out of the desire to receive a promised inheritance; the case of R v Cox (1992) exemplified just such circumstances and was discussed in the judgements in the Bland case.[xxiv]

 

The distinction between direct and indirect intention

 

The importance of preserving the distinction between directly intended acts and those indirectly intended was reiterated by the Ward and Bland courts on many occasions; it is a distinction which has been of great importance in both moral and legal theory:

In moral theory

 

Particularly in Roman Catholic moral theory - where it is sometimes known as the ‘doctrine of double effect’ - the distinction has been used both in discussing abortion and the withdrawal of medical care resulting in death. 

In relation to abortion, it has been used to justify medical procedures where the direct intent is to preserve the life of the woman, but which have the (indirect) effect of terminating her pregnancy. 

In relation to the care of the terminally ill, it has been used to justify the administering of pain relieving medicine if the primary (or direct) intent is to relieve pain even though there is a recognition that death will result.

In legal theory

 

The legal responsibility for acts which are directly intended is not in doubt; the situation for indirectly intended acts is more problematic.  Smith and Hogan defines ‘direct intention’ in terms of those acts which are ‘foreseen and desired’:

“It is clear that a man [directly] intends a consequence of his act when he foresees that it may result and desires that it should do so.” [xxv]

In relation to ‘indirect intention’ Smith and Hogan comment that:

“When the consequence is not desired for its own sake difficulties arise.  The problem occurs where D, in deciding to act, contemplates two consequences, (A) and (B).  (A), considered in isolation, is a consequence which D does not desire, indeed its occurrence may be abhorrent to him.  (B) however he wants badly.” [xxvi]

The authors then distinguish between cases where (A) and (B) are necessarily connected and cases where the connection is contingent.  They suggest that if (B) is intended, and (A) is necessarily connected with (B), then liability should automatically follow for (A); whereas if the connection is contingent then liability for (A) should depend on the degree of probability of (A) ensuing.  The reported cases, which hinge on liability for indirectly intended acts, are few and do not readily fit the suggested framework; however, the authors considered an hypothetical case which is instructive: a nephew who, on the death of his uncle, is due to inherit the uncle’s estate; the nephew desires to enjoy his inheritance immediately though he does not desire his uncle’s death as he loves him; the nephew gives his uncle a fatal dose of poison: Does he intend his uncle’s death?

“Of course ... the courts would say that he intended to cause death.  His intention to inherit [the] property would be regarded as a mere motive, irrelevant except for the purposes of proof.” [xxvii]

Two points emerge from this legal analysis:[xxviii]

(i)          criminal responsibility attaches to an act if it is foreseen and desired.

(ii)        criminal responsibility attaches to an act which has death as a foreseen and necessary, but not desired, consequence.

 

The distinction between act and omission

 

Applying the above analysis to the withdrawal of ANH from a PVS patient, the conclusions follow that because the withdrawal of ANH is either an act or an omission:

(A) If it is considered as an act  then certainly the death of the patient is a foreseen consequence;

(i)          If the death is a desired consequence then the act is murder. 

(ii)        If the death is not a desired consequence but is a necessary consequence then again the act is murder

It is extremely difficult to avoid the conclusion that, in the withdrawal of ANH from a PVS patient, death is the desired result; for example, in the Ward case Lynch J. stated:

“I take the view that the proper and most satisfactory test to be applied by the Court in this case is the best interests test, i.e. whether it is in the best interests of the Ward that her life, such as it is at present, should be prolonged by the continuation of the abnormal artificial means of nourishment or whether she should be  allowed to slip away naturally by the withdrawal of such abnormal artificial means ... ” [xxix]

The ‘allowing to slip away naturally’ is clearly a desired consequence; however even if this were disputed, the death is clearly a necessary consequence of the withdrawal of ANH.  Thus, if the withdrawal of ANH were considered an act - as distinct from an omission - it would amount to murder.  Hence:

(B) In order to be considered lawful, it is necessary that the withdrawal of ANH be categorised as an omission. [xxx]  This, of course, is not a sufficient condition.

Conclusion 6 -3 : In order that the withdrawal of ANH be not legally categorised as murder, it is necessary that it be deemed to be an omission as distinct from an act.

The importance of categorising the withdrawal of ANH as an omission was clearly recognised in the Bland judgement; though Lord Browne-Wilkinson had a certain difficulty in categorising it as such:

“The positive act of removing the nasogastric tube presents more difficulty. It is undoubtedly a positive act, similar to switching off a ventilator in the case of a patient whose life is being sustained by artificial ventilation.  But in my judgement in neither case should the act be classified as positive, since to do so would introduce intolerably fine distinctions.  If, instead of removing the nasogastric tube, it was left in place but no further nutrients were provided for the tube to convey to the patient’s stomach, that would not be an act of commission.  Again ... if the switching off of a ventilator were to be classified as a positive act, exactly the same result can be achieved by installing a time-clock which requires to be reset every 12 hours; the failure to reset the machine could not be classified as a positive act ... In my judgement, there is a further reason why the removal of the nasogastric tube in the present case could not be regarded as a positive act causing death.  The tube itself, without the food being supplied through it, does nothing.  The removal of the tube itself does not cause the death since by itself it did not sustain life.” [xxxi]

Lord Mustill found the distinction between an act and an omission to be crucial to his judgement, though he expressed an acute sense of unease at relying on it and suggested that the distinction was ‘both morally and intellectually dubious’. [xxxii]  Lady Butler-Sloss found the distinction unhelpful,[xxxiii] as did Lord Hoffman, who described it as ‘barren’.[xxxiv] 

 

The legal liability for omissions which cause death [xxxv]

 

In considering criminal liability for omissions, Smith and Hogan noted that the criminal law very rarely punished omissions; it considered its task as being that of preventing men from doing positive harm leaving the encouragement of doing good to other social institutions such as religion.  An illustration of this attitude which is commonly given is the example of a group of people watching a child, whom they could easily save, drown in a shallow pool.  In the absence of any special relationship with the child, they commit no crime.  However, if a special relationship which implies a duty to intervene exists, then liability for omissions may be imposed.  Smith and Hogan cite the case of Gibbins and Proctor where a woman living with a man withheld food from the man’s child intending it death or serious harm; she was convicted of murder.[xxxvi]  The case R v Stone [1977] was mentioned in the Bland case;[xxxvii] this case concerned a doctor who was convicted of manslaughter for failing to supply food and to procure medical attention for an elderly and infirm, but conscious, woman who was capable of feeding herself if food had been supplied.  These authorities suggest that the withdrawal of food by medical carers would appear to be murder.[xxxviii]  Unlike the duty to provide medical treatment, the duty of (medical) carers to provide food would appear to be absolute.  However, Lord Hoffman in the Bland case suggests that such a duty is not absolute and ceases when it can achieve no humane purpose.

In summary:  The withdrawal of ANH from a patient by medical personnel who are charged with his care is legally murder unless the following conditions, are satisfied:

(i)   The withdrawal of ANH must be considered as an omission, as distinct from an act (pace Butler-Sloss, LJ).

(ii)  The ANH must not be considered as being ‘food’. (pace Hoffman LJ.)

 

Conclusion 6 -4: In order that the withdrawal of ANH from a patient by medical personnel who are charged with his care not be legally held to be murder, it is necessary that ANH be deemed not to be ‘food’.

The above conclusions are essentially negative in that they are of the form ‘if such and such is the case then the withdrawal of ANH is not murder’; they do not specify when such a withdrawal is justified; a further analysis is required to clarify this latter question.

A framework within which the withdrawal of ANH could be justified could have been found either from a re-examination of the rules relating to the causing of death or the rules concerning the allocation of scarce resources; the courts however, chose to reconsider the rules relating to medical treatment and its withdrawal.  However, before the existing law on medical treatment could be used to justify the withdrawal of ANH; certain prerequisites had first to be established.

 

(iii) The legal preconditions required to justify the withdrawal of ANH.

 

The previous section considered the conditions which were necessary in order that the withdrawal of ANH not be legally deemed to be murder; these were that ANH must not be considered to be ‘food’, and that the withdrawal must be considered to be an omission.  We now seek sufficient conditions; i.e. criteria that would justify the withdrawal of ANH even though death was the foreseeable result of such a withdrawal.  

If the problem is to be resolved by ‘WMT’ framework then it is first necessary that ANH be considered a medical treatment - for in the absence of this initial step the ‘WMT’ framework would simply be irrelevant and could find no point of purchase on the problem.  Once ANH is deemed to be a ‘medical treatment’ then the next step is to establish that consent of the patient is required for all medical procedures including those which are life-saving.  It is a corollary of this proposition that a competent person has the right to refuse medical treatment even thought such refusal may result in their death.  The next step in the analysis is to establish that the right of a patient to refuse life-sustaining treatment is not lost by virtue of their incompetency.  The following step is to clarify who may exercise that right on behalf of the incompetent patient and the final step is to determine the criteria that should be used by the one who is exercising the right on behalf of an incompetent. 

To summarise:

Conclusion 6 -5  : In order that the ‘WMT’ may be used to justify the withdrawal of ANH the following propositions must be established:

(a) that ANH is a medical treatment.

(b) that a patient’s consent is required for all, including life-sustaining, medical treatment.

(A corollary of this is that a patient can refuse life-sustaining medical treatment.)

(c) that a patient does not lose the right to refuse life-sustaining treatment by virtue of their incompetency.

Once this right is established, then those who may exercise the right on behalf of an incompetent patient must be identified, and the criteria that must be used by them in making the decision to withdraw life-sustaining treatment must be specified.

 

(a) ANH is a medical treatment

 

In the Ward and Bland cases ‘food’ and ‘medical treatment’ are conceived of as being mutually exclusive categories; for example, in the Ward case Blayney J., stated:

“Normal food and drink could never be categorised as medical treatment.” [xxxix]

Hence, the categorising of ANH as a ‘medical treatment’ precludes it being categorised as a ‘food’ thus avoiding the first hurdle specified in the previous subsection: i.e. that if ANH is categorised as a ‘food ‘ its withdrawal by medical carers is, legally, murder.  However, is ANH a ‘medical treatment’?

Although the feed itself may be a medical preparation, and the means by which it is administered - the nasogastric or gastrointestinal tube - may require medical expertise, the classifying of ANH as a ‘medical treatment’ is by no means clear cut.  The issue was not fully argued in any of the judgements in either the Ward or Bland cases. [xl] 

In the Bland case, the general view was that the existence of a medical consensus which considered ANH to be a medical treatment, was decisive; though some of the judges sought to resolve the problem is a more indirect way.  Butler-Sloss LJ. for example, considered ‘medical care’ rather than ‘medical treatment’ as being the important concept thus avoiding the need for ‘over-fine distinctions’; Lord Keith suggested that the focus should be on the whole medical regime which kept Anthony Bland alive and that this was undoubtedly ‘medical treatment’.[xli] 

In the Ward case, the argument on whether ANH is a ‘medical treatment’ was resolved in a peremptory manner best exemplified in the statement of Denham J.:

“I am satisfied that feeding the ward a formula through a gastrostomy or nasogastric tube is a form of medical treatment.“ [xlii]

Once it is conceded that ANH is a medical treatment then a further question arises: does the treatment consist of the ‘food’ or the ‘nasogastric tube’ or, perhaps, both?  Dr. Andrews argued that the ‘tube’ - but not the ‘food’ - was the treatment:

“At the trial I suggested that treatment, by its very nature, was given to treat an abnormality and said that I could not understand what abnormality the food was supposed to be treating ... there is no reason, apart from the time needed for its preparation, why liquidised ‘normal’ food should not be used.  The tube is therefore the treatment the food is not.” [xliii]

However, Lord Browne-Wilkinson found a difficulty in regarding the tube as the treatment; he noted, as quoted earlier, that the removal of the tube was a positive act not an omission; and he held that “The tube itself, without the food being supplied through it, does nothing.” [xliv] and that the withdrawal of treatment sanctioned by the court related to the withdrawal of food - an omission not a positive act; this approach however clouds any possibility of distinction between ‘food’ and ‘treatment’.  In point of fact the judgements in the Bland case refer explicitly at many points to ‘food’ rather than ‘treatment’ being withdrawn; it is, perhaps, best to interpret this as an informal use of the term ‘food’ to cover the mixture that was used in the tube-feeding, and not ‘food’ in the technical sense whose withdrawal would constitute murder.  However, doubt is cast on this interpretation by a statement of Dr. Andrews, quoted above, that there was “... no reason ... why liquidised ‘normal’ food should not be used.”  Andrews, speaking of the Bland case, continued:

“The tube is therefore the treatment, the food is not.” [xlv]

It is ironic that in the Bland case, the tube was not, in fact, removed; it was left in place in case it might be useful in the giving of medication.[xlvi]  To hold that the tube was the treatment would imply that the treatment had not been withdrawn!

In conclusion:

Conclusion 6 -6 : The arguments for classifying ANH as a ‘medical treatment’, though less than compelling, were accepted by both the Ward and Bland courts.

 

(b) The patient’s consent is a prerequisite for all medical treatment.

 

Once it has been accepted that ANH is a medical treatment, then the existing law concerning the legal requirements for medical intervention come into play.  In describing these legal requirements it is easier to first consider the law relating to the medical treatment of competent patients, and to then consider the situation where competency is absent.

 

Competent patients: the necessity for consent

 

The current law is to the effect that no medical treatment can be given to a competent patient without their consent and that any attempt to do so constitutes a legal assault.[xlvii]  Although this has generally been accepted in Ireland as being the law, it was not until the Ward case that it was authoritatively and unambiguously stated to be so. 

Conclusion 6 -7 : The Ward case established that a competent individual has the right to refuse medical treatment even if their death is the result of such a refusal.

Until the Ward case there had been some doubt as to whether a refusal of life-sustaining treatment was legally binding in Irish law.  Indeed, in the Ward case Hamilton CJ. sought to restrict the right to refuse life-sustaining treatment to those cases where the patient was terminally ill:

“A competent adult if terminally ill has the right to forego or discontinue life-saving treatment.” [xlviii]

Hamilton CJ. found that the Ward was in fact terminally ill thus allowing him to avoid conceding a general right to refuse life-sustaining treatment.  The attempt to categorise PVS as a terminal illness is unsustainable and was not supported by other members of the court. 

Denham J, in contrast, was unequivocal in declaring the general right to refuse life-sustaining treatment:

“Medical treatment may not be given to an adult person of full capacity without his or her consent.  There are a few rare exceptions to this e.g. in regard to contagious diseases; in a medical emergency where the patient is unable to communicate ... The consent ... is not necessarily a decision based on medical considerations ... Such reasons may not be viewed as good medical reasons, or reasons most citizens would regard as rational.” [xlix]

O’Flaherty J. was equally forthright:

“ ... there is an absolute right in a competent person to refuse medical treatment even if it leads to death.” [l]

As was Blayney J.:

“Where a person who is compos mentis has a condition which, in the absence of medical intervention, will lead to death, such a person has a right in law to refuse such intervention.” [li]

There had been some legal opinion to the effect that a refusal of life-sustaining medical treatment, without sufficient medical reason, was necessarily evidence of irrationality thus implying mental incompetence and thus obviating the need for patient consent, the treatment being given under the legal doctrine of necessity.[lii]  Such non-consensual interventions had also been justified by theories of the ‘sanctity of life’; these held that an individual’s life was the very precondition for the possession of rights and as such implied that an individual could have no right to take his own life.  A similar philosophy underlies the (still accepted) legal prohibition on a person selling themselves into bondage or slavery - one has total contractual freedom but such freedom does not extend to the giving away of one’s freedom!  In the Ward case, the statement of the Chief Justice exemplifies such an approach:

“No person has the right to terminate or have terminated his or her life or to accelerate or have accelerated his or her death.” [liii]

As does the comment in Smith and Hogan - a leading textbook on criminal law - that:

“Prison officials may - indeed, must - forcibly feed prisoners if that is necessary to preserve their health and, a fortiori, their lives.” [liv]

Ironically, these very prisoners were tube fed! [lv]

 

(c) Incompetent patients do not lose the right to refuse life-sustaining treatment.

 

Once it is conceded that competent patients have the right to refuse life-sustaining treatment then the following questions arise:

Should this right to refuse treatment have any applicability to incompetent patients?

If so:   Who should exercise this right? and

     What criteria should they use?

There was no dissent in either the Ward or Bland case from the proposition that the right to refuse treatment applied to incompetent patients; the argument in favour is well expressed in Denham J.’s pithy comment that:

“To continue the treatment is as much a decision as not to do so.” [lvi]

This implies that a treatment decision is unavoidable; either a consent or a refusal to consent is required, there is no third way.

The other two questions were much discussed by the courts; in examining the judgements it is easiest to consider the Ward and the Bland cases separately.

 

Who should exercise this right?  What criteria should they use? - The Bland case

 

The parens patriae jurisdiction[lvii] of the court gives the court the power to make decisions for those who are incompetent.  This jurisdiction was, in part, removed by statute from the English courts, with the result that the English courts lost the power to consent to the medical treatment of incompetent adults other than those who were wards of court.  However, the English courts[lviii] 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 court could not make a decision to permit treatment withdrawal for Anthony Bland, they did assert the right of his doctor to make that decision and they laid down the criterion to be used by the doctor in making the decision: the decision should be made in the patient’s ‘best interests’.

 

A more detailed consideration of the criterion to be adopted

 

At first instance,[lix] the withdrawal of ANH was held to be ‘in the best interests of Tony Bland.’  [lx] 

In the Court of Appeal, Sir Thomas Bingham MR held that the question of whether ANH be withdrawn:

 “ ... is to be resolved by the doctors in charge of his case ... conscientiously exercising a careful and informed judgement as to what the best interests of their patient require.” [lxi]

Butler-Sloss LJ. held that the ‘substituted judgement’ test had no application in such cases and that the appropriate test was the ‘best interests’ test.  Hoffman LJ. based his judgement on the wrongfulness of introducing ‘an external agency of death’;[lxii] this permitted him to conclude that, in the instant case, the withdrawal of ANH was not wrongful in that it was not an external agency of death.  The concept of ’best interests‘ played only a limited role in his analysis:

“The best interests of the patient in my judgement embrace not only recovery or the avoidance of pain (neither of which apply to this case) but also a dignified death.” [lxiii]

In the House of Lords, Goff LJ. decided that the appropriate criterion was the ‘best interests‘ test; however, he distinguished between cases where some consciousness remained and those - as in the Bland case - where the patient was totally unconscious.  In cases of the former type the rule was laid down in In re J [lxiv] i.e. that it -

“... is for the court to judge the quality of life the child would have to endure if given the treatment and decide whether in all circumstance such a life would be so afflicted as to be intolerable to that child.” [lxv]

Goff LJ. held that in the Bland case “... there is in reality no weighting operation to be performed ... it is the futility of the treatment which justifies its termination.[lxvi]  He held that the ‘substituted judgement’ test formed no part of English law.[lxvii]

Lord Browne-Wilkinson held that the ‘best interests’ test was the appropriate test:

“... the critical decision ... is whether it is in the best interests of Anthony Bland to continue the invasive medical care ... ” [lxviii]

Lord Mustill found the ‘substituted judgement test to be ‘meaningless’.[lxix]  His analysis of the application of the ‘best interests’ test was novel in that he found that Tony Bland had no interests of any kind and as such the requirement for the continuance of treatment - i.e. that it be in his ‘best interests’ - was not satisfied and accordingly the treatment must cease.  Lord Mustill argued that 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 should be firmly rejected:

“This is the first step on a very dangerous road indeed, and one which I am not willing to take.” [lxx]

 

Who should exercise this right? - The Ward case

 

It had been submitted in argument that the exercise of the right to withdraw treatment from the Ward lay with either the patient’s family, or with his medical team, or with the courts or, indeed, with the patient herself in so far as she had made her views known before the onset of the near-vegetative state.  The court held that the decision ultimately rested with the courts.  The court explicitly used their parens patriae jurisdiction and thus the decision is not restricted to cases of wardship.  However, the court did not stipulate that its permission be sought in future cases where the withdrawal of ANH was contemplated; it seems that in such cases, if the patient’s family and medical carers are in agreement, that such a course is in the patient’s ‘best interests’, the ANH can be withdrawn without court approval.[lxxi]

 

What criteria should be used? - The Ward case.

 

Various tests were suggested to the Ward court as to the criteria that should be applied in making a decision of treatment withdrawal for a incompetent patient.  For example, it was suggested[lxxii] that the criterion should be either a ‘benefits and burdens test’, a ‘substituted judgement test’, or an ‘objective medical standards test’.  It was also suggested that a ‘best interests’ test was the most appropriate.

In the High Court, Lynch J. stated:

“I take the view that the proper and most satisfactory test to be applied by the Court in this case is the best interests test ... Whilst the best interests of the Ward is the acid test, I think that I can take into account what would be her own wishes if she could be granted a momentary lucid and articulate period.” [lxxiii]

In the Supreme Court, O’Flaherty J. found that it was:

 “ ... impossible to adapt the ‘substituted judgement’ to the circumstance of the case ... For now, I prefer to rest my judgement by deciding what is in the best interests of the ward.” [lxxiv]

Blayney J. approved the test laid down by Lord Goff in the Bland case, that the appropriate criterion is:

“... whether it is in the best interests of the patient that his life should be prolonged by this form of medical treatment.” [lxxv]

Denham J. held that:

”The test is: whether it is in the best interests of the ward ... for the court to consent to the medical treatment.” [lxxvi]

Conclusion 6 -8 : The Ward and Bland cases held that treatment decisions for incompetent patients should be made on the basis of the patient’s ‘best interests’.

The injunction to a patient’s physician that treatment decisions should be based solely on the ‘best interests’ of the patient clarifies the ethical duties of the physician; it implies, for example, that interests of parties other than the patient - such as interests of the patient’s family or of the medical authorities if these do not coincide with the patient’s interests - should be disregarded.  However, it does not help to distinguish between two possible courses of action both of which, it is claimed, are in a patient’s ‘best interests’; for such a task, the concept of ‘quality of life’ is required.  The concept of ‘quality of life’ is examined in Chapter 7.


 

(iv) An example

 

Let us attempt to separate the medical description of the problem underlying the Ward and Bland cases from the problem itself; this is a difficult task since even the word ‘patient’ connotes a medical setting and ‘PVS’, a medical condition. 

Consider the example of a PVS patient who is normally cared for at home by their immediate family but who, in emergencies, is hospitalised.  Let us further assume that when at home, the patient is given his normal food, which is fed by spoon by a family member.[lxxvii]  Such circumstances are not unknown: the last days of the Ward, for example, were spent at home though under nursing care.[lxxviii]

Compare these two situations: the hospitalised tube-fed PVS patient ‘X’, and the home based spoon-fed PVS patient ‘Y’.  The families of both patients wish that the patients be ‘allowed’ to die. Certainly, as we have seen, a legal distinction can be drawn between the family ceasing to feed patient ‘X’ and the medical carers ceasing to give ANH to patient ‘Y’;[lxxix] but can an ethical distinction be drawn between the two cases?

It is clear that the intent is the same in both cases.  A distinction might be attempted between the withdrawal of treatment and the withdrawal of food by suggesting that, unlike the withdrawal of food, the withdrawal of life-saving treatment need not necessarily lead to death.  Though this distinction may have some slight validity in cases where the life-saving medical treatment being discussed is withdrawal of ventilation[lxxx] it is difficult to justify with regard to withdrawal of ANH.[lxxxi]

A distinction between the withdrawal of treatment and the withdrawal of food based on the possibly greater suffering caused to the patient by the withdrawal of food can be dismissed in the recognition that sedation is possible in both cases. 

A distinction based on the difference of role between family and medical staff in that the motives of the family might be mixed, whereas the motives of the carers are altruistic is lessened by the realisation that the medical carers may also act from mixed motives: the best utilisation of scarce resources rather than the best interests of the individual patient may predominate.  At any rate questions as to the determination of motive are essentially legal questions and for the purpose of an ethical inquiry it can be assumed that the motives of both the medical carers and of the family are beyond reproach.

Must the family of patient ‘Y’ in seeking a resolution of the problem place him into hospital care knowing that as a consequence spoon-feeding will cease and tube-feeding can commence only to be quickly discontinued? [lxxxii]

Such intrigues seems a travesty of ethical behaviour and suggest that medical treatment and its withdrawal is being used as a subterfuge,[lxxxiii] and that a fortuitous circumstance with no inherent connection to the underlying problem is being used to find a resolution.  Wittgenstein’s memorable phrase that the primary task of philosophy is to ‘convert concealed nonsense into overt nonsense’ [lxxxiv] so that it may dissipate, seems apt.  If, indeed, the withdrawal of medical treatment is being used as a convenient camouflage to mask the goal of the procedure - the death of the patient - then this is most unlikely to produce an ethical response appropriate to the actual problem.  In such circumstances the primary task of any ethical investigation - of more importance than any attempts at solution - is surely to begin to peel away such masks so that the true problem can at least emerge from the fog of obfuscation and be fully perceived for what it is; for only then can an appropriate solution emerge.

The conclusion is that the ethical problems faced by the carers of patients ‘X’ and ‘Y’ are identical.  Certainly it may be the case that the legal resolution of the problem posed by patient ‘Y’ may be considerably more difficult than that posed by patient ‘X’, in that the possibility of abuse is greater; but surely the formulation of the underlying ethical problem must not be distorted to suit legal convenience.  The law would, as in the Ward and Bland cases, consider the behaviour of the medical carers of patient ‘Y’ in withdrawing ANH as beyond reproach[lxxxv] yet would deem the behaviour of the family who withheld food as being legally guilty of the murder of ‘X’.[lxxxvi]

The conclusion that I wish to draw from this discussion is that:

Conclusion 6 -9 : As a mechanism for resolving ‘end-of-life’ issues for PVS patients, the ‘WMT’ framework is intrinsically flawed in that its utility depends on the existence of a set of circumstances which are contingent and which, though of considerable legal importance, have no inherent ethical relevance.

 

Subsection 2: The Ward and Bland cases: reformulating liability for death

 

In the previous subsection we examined one method of resolving the ethical and legal problems relating to ‘end-of-life’ decisions for PVS patients i.e. by formulating the problem as one of medical treatment and its withdrawal.  We now examine a second possible way which is by reformulating the rules relating to liability for the causing of death.  We are not here concerned with how this might be formulated theoretically - that will be considered in Part 3 where one such proposal is made - but with the attitude displayed by the Ward and Bland courts to a solution along such lines.

In the Bland case, the House of Lords showed considerably more willingness than did the Irish Supreme Court in the Ward case to directly confront the issue of death and to acknowledge that the goal of the withdrawal of ANH was the death of the patient. 

The original court application in the Bland Case - which was in fact granted - sought a declaration that the carers were entitled to discontinue medical treatment and:

“ ... thereafter need not furnish medical treatment to Anthony Bland except for the sole purpose of enabling Anthony Bland to end his life and die peacefully with the greatest dignity and the least amount of pain, suffering and distress.” [lxxxvii]

This placed the achievement of a peaceful death centre-stage.  In contrast, the application to the Irish courts was considerably more circumspect; it sought a order simply for ‘the discontinuance of all further artificial nutrition and hydration.’ [lxxxviii]

The refreshing directness with which the judgements in the Bland case addressed the issue of death - which ranged from Sir Stephen Browne statement that ‘The process would be one of ‘starvation’’;[lxxxix] to Lord Lowry’s acceptance that the intention was to bring about the patient’s death;[xc] to Lord Mustill’s refusal to countenance the ‘manipulation’ of the doctrine of causation[xci] involved in suggesting that the cause of death would not be the withdrawal of ANH - is in stark contrast to the judgements in the Ward Case.  It was made clear at many points in the judgements in the Bland Case that - as a mechanism to enable a solution to emerge - the withdrawal of ANH was less than ideal but that a more appropriate solution would require the intervention of Parliament because it would involve a radical revision of the law.  Lord Mustill, for example, noted that one possibility would be for the courts:

“... to create, through a binding precedent, a new common law exception to the offence of murder ... arising from the termination of life for medical reasons ... This approach would have the great attraction of recognising that the law has been left behind by the rapid advances of medical technology.  By starting with a clean slate the law would be freed from the piecemeal expedients to which courts ... have been driven when trying to fill the gap between old law and new medicine ... This can only be achieved by democratic process through the medium of Parliament.” [xcii]

and again:

“The whole matter cries out for exploration in depth by Parliament and then for the establishment by legislation not only of a new set of ethically and intellectually consistent rules, distinct from the criminal law, but also for a sound procedural framework ... ” [xciii]

In the Ward case, in contrast, though the desirability of the Ward being allowed to die peacefully and with dignity was expressed on many occasions, the achievement of this goal was not directly addressed; it was as if the death of the Ward was a slightly unexpected, but nonetheless satisfactory, side effect of the withdrawal of ANH.  The issue of ‘death’ was addressed in many of the judgements; Lynch J, for example, stated:

“Death is a natural part of life.  All humanity is mortal and death comes in the ordinary course of nature and this aspect of nature must be respected as well as its life-giving aspect.  Not infrequently, death is welcomed and desired by the patient and there is nothing legally or morally wrong in such an attitude.  A person has a right to be allowed to die in accordance with nature and with all such palliative care as is necessary to ensure a peaceful and dignified death.” [xciv].

Hamilton CJ. stated:

“As the process of dying is part, and an ultimate inevitable consequence, of life, the right to life necessarily implies the right to have nature take its course and to die a natural death ...” [xcv]

and O’Flaherty commented eloquently:

“In the submissions  ... death was said to be part of life - indeed the only certainty in life.  Although, as Bryan MacMahon has written each person attempts to mute or cancel the terror of impending death’ ... nonetheless, in everyone’s sub-conscious there is a hope of a peaceful and dignified death.” [xcvi]

But at no stage were these insights incorporated into the intellectual structure of the judgements.[xcvii]  It is as if the acknowledgement of the intention to achieve a ‘peaceful and dignified death’ for a patient was treading on dangerous ground;  this reticence was doubtlessly caused by the fear that to acknowledge an intention to occasion a ‘peaceful and dignified death’ for another is, as matter of pure logic, an intention to occasion the death of that other, and thus falling foul of, if not the distinction between ‘killing’ and ‘letting die’, then certainly that between direct and indirect intention.[xcviii]

Conclusion 6 -10 : It was acknowledged at many points in the various judgements in the Bland case, that a fitting resolution of the problem of ‘end-of-life’ decisions for PVS patients required a reformulation of the rules relating to liability for causing death; in contrast, the judgements in the Ward case made no such acknowledgements.

 

In summary:  the traditional distinction between ‘killing’ and ‘letting die’ is predicated on the assumption that

(i)          ‘Death is an evil’ and that

(ii)        since both ‘killing’ and ‘letting die’ cause death, both are evil.

The discussion then proceeds to consider whether they are of a comparable evil or whether ‘killing’ is a greater evil than is ‘letting die’. 

The argument to be advanced in this thesis is that:

(i)          The proposition ‘Death is an evil’(simpliciter) is unsustainable. [xcix]

(ii)        The achievement of ‘a good death’ is a good.

(iii)       Assisting another to achieve what is for them ‘a good death’ may, depending on the circumstances, involve active participation or direct assistance (killing) or may require a more passive participation (letting die).

(iv)       From an ethical perspective, the important distinction is not that between ‘act’ and ‘omission’ nor between ‘killing’ and ‘letting die’ but between non-consensual interventions (including omissions[c]) and those made with consent.  It will be argued that interventions of a type which usually result in the death of another should not be made without the consent of this other unless they have permanently lost the ability to communicate (thus implying the loss of their personhood) and then only if such an intervention is in their ‘best interests’.

 

Subsection 3: The Ward and Bland cases: the role of ‘scarcity of resources’[ci]

 

In the previous subsections we examined the attitude of the Ward and Bland courts to two possible methods of resolving the ethical and legal problems relating to ‘end-of-life’ decisions for PVS patients: the interpretation of the problem as one of medical treatment and its withdrawal; the reformulation of the rules relating to liability for the causing of death.  We now consider the attitude of the Ward and Bland courts to a third possibility for resolving the problem: because health care resources are limited the continued medical treatment of PVS patients entails the use of considerable resources resulting in many other patients being denied, if not life-sustaining then life-enhancing, treatment.

Many of the medico-legal problems in our society appear, on a superficial examination, to concern only those individuals on whom the problem is centred; however, on a deeper analysis these problems can be seen to have a wider social dimension.  Problems such as abortion, euthanasia, the sterilisation of the mentally retarded, the preventive detention of the untreatably violent, concern both particular individuals and the wider society; by ‘wider society’ is meant the interests of non-identifiable individuals.  For example, in considering the release of a particularly violent individual, there may be no identifiable individual whose rights are infringed by such a release and who accordingly should be considered, but there may be many non-identifiable individuals whose rights may well be affected. The term ‘the common good’ - as used in the Irish Constitution - refers to these wider non-specific interests.

The political philosophy of individualism current in Western society and reflected in its jurisprudence has usually ensured that any analysis of such problems is framed only in terms of the rights of particular determinable individuals.  Powerful historical reasons exist for this tendency to favour the rights of the individual over those of the common good not the least of which is that the ‘common good’ has been used in the past as a convenient cloak to mask severe and unjustifiable repression of individual rights.  Very few examples exist of medico-legal problems where the rights of the wider society are explicitly acknowledged to an extent comparable to the recognition of the individual rights; one such example is where an individual with a contagious disease is confined against his will and where this is justified by an appeal to the common good; the reliance on the common good is especially clear when the contagious disease is non-treatable thus precluding any attempt to justify the intervention in terms of the ‘best interests’ of the incarcerated individual.  Usually such interventions would, if at all possible, be justified in terms of the rights of the individual, the right of the wider society being not explicitly acknowledged.  This hesitation to appeal to wider social interests can lead to a misuse of language, as when interventions which have in fact a wider social interest, are justified solely in terms of individual rights; for example the sterilisation of mentally retarded girls is justified solely in terms of their ‘best interests,’ without any acknowledgement of the social reasons for such intervention - social reasons may in fact be the decisive consideration.

The perceived need to justify interventions solely in term of individual rights can militate against open and honest debate; in the Ward case for example, the issue of the scarcity of resources was not addressed; there was no acknowledgement that the resources required to sustain a PVS patient over many years are considerable and that the allocation of such resources to a PVS patient necessarily entails, as a matter of strict economic fact, that other patients will be deprived of some entitlement to health care.  In the Bland Case the issue of scarcity of resources was explicitly withdrawn form the court’s consideration, nonetheless it was referred to in some of the judgements.

Medical academics have not been so reserved and the relationship between the scarcity of resources and the treatment PVS patients has been discussed in the medical literature; Raanan Gillon, for example, in commenting on Dr Andrew’s work with misdiagnosed PVS patients, stated:

“But resources are severely limited ... We withdraw ventilation in certain hopeless cases of respirator dependency; we withdraw dialysis in certain hopeless cases of renal failure ... In many such cases the patients, were they to be given treatment, would manifest at least as much conscious life as the example of ‘recovery’ after three years of being in a vegetative state cited by Dr. Andrews.” [cii]

An explicit consideration of such issues could clearly provide, if not a full framework for the making of decisions for treatment withdrawal for PVS patients, then certainly a valuable adjunct to other frameworks.  Such possible developments will not be considered in this thesis; suffice to examine how the issue of scarce resources was considered in the Ward and Bland cases.

 

The Ward Case and ‘scarcity of resources’

 

This topic can be disposed of quickly in that the case was resolved solely on a consideration of the Ward’s ‘best interests’; the question of the scarcity of resources played no role whatever in the judgements.  Denham J., however, did discuss the concept of ‘the common good’ but she judged its relevance to the Ward case solely in relation to the interests of the community in the protection of life and, as such, the concept argued against a decision to withdraw treatment:

“Also, the common good, the interest of the community, in the protection of life, must be considered ... The primary constitutional concept is to protect life within the community.  The state has an interest in the moral aspect of society - for the common good.” [ciii]

That the interests of the common good might be also served by the husbanding of scarce resources was not considered.

 

The Bland Case and ‘scarcity of resources’

 

The hospital authorities who made the original application in relation to Tony Bland, explicitly requested that the issue should be considered as if their resources were unlimited.  However, Lord Browne-Wilkinson urged that:

“ ... it is not legitimate for a judge in reaching a view as to what is for the benefit of the one individual whose life is in issue to take into account the wider practical issues as to allocation of limited financial resources.” [civ]

In his view, such questions were for Parliament to resolve.[cv] 

Lord Mustill agreed, stating:

“The large resources of skill, labour and money now being devoted to Anthony Bland might in the opinion of many be more fruitfully employed in improving the conditions of other patients, who if treated may have useful, healthy and enjoyable lives for years to come.  This argument was never squarely put, thought hinted at from time to time.  In social terms it has great force, and it will have to be faced in the end.  But this is not a task which the courts can possibly undertake.  A social cost-benefit analysis of this kind ... must be for Parliament alone ... Until the nettle is grasped, we must struggle on with the existing law, imperfect as it is.” [cvi]

Alone amongst the judges, Lord Hoffman provided a conceptual structure whereby ‘scarcity of resources’ could be included in a decision making process.  His analysis of the Bland Case hinged on the point that the important distinction is not, as he called it, 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.  He suggested that if someone starves to death a child or invalid in his care we treat him as if he had introduced an external agency; that generally there is no moral difference between the prohibition on violating the person and the positive obligation to act with humanity towards the helpless but that there are two exceptions: unlike the prohibition on violating the person which is absolute, the duty to provide care ceases when such care can provide no humane purpose; furthermore the duty to provide care is also restricted to what one can reasonably provide; health resources are not limitless and choices must be made.  Lord Hoffman continued:

“No one is under a moral duty to do more than he can, or to assist one patient at the cost of neglecting another.  The resources of the National Health Service are not limitless and choices have to be made ... But one is bound to observe that the cost of keeping a patient like Tony Bland alive is very considerable and that in another case the health authority might conclude that its resources were better devoted to other patients.” [cvii]

Conclusion 6 -11 : The relevance of ‘scarcity of resources’ to the issue before the court was acknowledged in the Bland case; however, the court considered that questions of ‘scarcity of resources’ could not be considered by the court in the absence of legislative intervention.  In contrast, the Ward case did not acknowledge the relevance of the concept of ‘scarcity of resources’ to the problem.

 

Section 4: Subsequent Irish and English cases concerning PVS.

 

Irish cases

 

The Ward case has been the only case concerning PVS to come before the Irish courts.

 

English cases

 

Grubb writing in 1996,[cviii] found it was surprising that only seven cases had come before the English courts since the Bland decision; and that only two of these had been formally reported.  He believed that a possible reason for such a low level of court applications was because doctors chose to manage PVS patients by not treating acute infections or other life threatening conditions - such decisions do not require prior court approval - rather than by the withdrawal of ANH which, in England, does require an application to the High Court.  The two reported cases alluded to by Grubb were Frenchay Healthcare NHS Trust v S [cix] and Re G (Persistent Vegetative State);[cx] these are discussed below as is a third case Re D (Medical Treatment)[cxi] which dates from 1997.

These cases, which have been summarised in Appendix C, are of interest for two reasons:

(i)          They show how the courts applied the principles laid down in the Bland judgement in regard to the obligation to seek the approval[cxii] of the High Court and to ensure that the Official Solicitor was enabled to commission a full independent medical assessment before ANH was withdrawn.

(ii)        They show how the requirement set out in the Bland case that its judgement be applied only to cases of ‘true’ PVS evolved under continuing judicial interpretation. 

 

Frenchay Healthcare NHS Trust v S (1994)

 

A young man had taken a drug overdose which resulted in extreme brain damage. He was being fed by means of a nasogastric tube which had become disconnected and an operation was required to reinsert the tube.  The hospital had applied, as a matter of urgency, to the court for authorisation not to replace the tube and as a result of this procedure being adopted the Official Solicitor had been unable to conduct as full an examination of the patient as he had wished.  The Official Solicitor also contended that the patient was not fully PVS.

Medical evidence had been given to the court by one consultant who “... did not unequivocally diagnose PVS ... ” [cxiii] that:

“There is still no verbalisation although he often grunts and can be noisy.  He appears to suffer pain but it is not obvious where this is originating.” [cxiv]

A consultant neuropsychiatrist had concluded that:

“His current quality of life is nil and I see no prospect of this improving.” [cxv]

However, a consultant in rehabilitation medicine believed that a reduction in sedation was advisable to better enable her to judge the patient’s ability to communicate; though the judgements commented that: “... [she] expresses her views on his ability to communicate in a somewhat equivocal way.” [cxvi]

 

In relation to the procedural point Sir Thomas Bingham MR. held that to uphold the right of the Official Solicitor to conduct a full examination of the patient before a court application to discontinue ANH would, in this case, necessitate the tube being first reconnected and then a subsequent application for its disconnection; this he was not willing to do.  He did, however, affirm the general rule.

In relation to the applicability of the Bland judgement to patients who were not fully PVS, Sir Thomas Bingham MR. summarised the strictness of the Bland decision in the words:

“... the [Bland] courts made plain that their decisions were to be understood as strictly applying to the Bland situation and no other ... A number of the judges were at pains to emphasise that they should not be taken as approving anything falling outside the factual situation which was then before the court.” [cxvii]

Waite LJ. noted that the Bland judgements had laid stress on the absence of any ‘glimmering of awareness’. [cxviii]

In the event, the court decided to permit the treatment withdrawal; Sir Thomas Bingham MR. stated:

“I think it is plain that the evidence in this case is not as emphatic and not as unanimous as that in Bland’s case.” [cxix]

He continued:

“It is not suggested that one is dealing here with a brain damaged patient who has some significant cognitive function.” [cxx]

The Bland criterion of ‘absence of any glimmering of awareness’ seems to have been transformed imperceptibly into ‘absence of significant cognitive function’!


 

Re G (Persistent Vegetative State) (1994)

 

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 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.  The court accepted the unanimous medical evidence that G had no awareness and decreed that ANH should be withdrawn.[cxxi] 

 

Re D (Medical Treatment) (1997)

 

In the case of ‘Miss D’ there was a dispute as to whether the patient was fully PVS because she appeared to track moving objects with her eyes, she flinched in response to gestures and she 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 whilst there was expert medical opinion to the effect that these movements were simply ‘primitive reflexes’ showing no evidence of consciousness.

Sir Stephen Browne 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’,[cxxii] 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.” [cxxiii]

Conclusion 6 -12 : The criterion which the Bland case deemed necessary for the withdrawal of ANH namely that no ‘glimmerings of awareness’ be present, has in subsequent cases effectively been widened to include ‘no possibility for a meaningful life whatever’ or absence of significant cognitive function’.

 

Section 5: Conclusions.

 

In conclusion, the Ward case was resolved by interpreting the problem before the court as being essentially concerned with the conditions under which medical treatment may be given to and withdrawn from an incompetent patient; it held that an incompetent patient may have life-sustaining medical treatment withdrawn if it is deemed to be in their ‘best interests’ that this should occur.  The judgements did not stipulate that application be made to the court in future cases where withdrawal of ANH was contemplated.

The Bland judgements, in contrast, did stipulate that application be made to the court for permission to withdraw ANH.  Furthermore, the judgements recognised - again in contrast to the Ward case - that the death of the patient was central to the resolution of the problem.  Many of the judgements in the Bland case considered that the optimal method of tackling the problem lay in a reformulation of the rules relating to liability for the causing of death; such, however, required the intervention of Parliament and in the absence of legislation the rules relating to the withdrawal of treatment were reluctantly pressed into service.

In England, subsequent cases on the withdrawal of ANH have - although paying lip service to the strict criteria laid down in the Bland case - effectively widened these criteria. 

In Ireland, the subsequent development of medical practice in relation to the withdrawal of ANH is not open to public scrutiny in that application to the court is not obligatory in such cases.

____________

The conclusions established in this chapter are:

Conclusion 6 -1 : The court in the Bland case, in contrast to that in the Ward case, acknowledged that the methods of analysis (i.e. withdrawal of medical treatment) available to them for the resolution of the problem were not ideal; that other more appropriate methods existed but were not available to the courts until appropriate legislation was enacted.

Conclusion 6 -2 : Part of the attractiveness of the ‘WMT’ to the Ward court was that it offered to the court the possibility of evading responsibility for occasioning the death of the Ward. This evasion was accentuated by the decision of the court that an application to the court is not required in future cases where the withdrawal of ANH is contemplated; this was in contrast to the Bland court  which did lay down such a requirement.[cxxiv]

Conclusion 6 -3 : In order that the withdrawal of ANH be not legally categorised as murder, it is necessary that it be deemed to be an omission as distinct from an act.

Conclusion 6 -4: In order that the withdrawal of ANH from a patient by medical personnel who are charged with his care not be legally held to be murder, it is necessary that ANH be deemed not to be ‘food’.

Conclusion 6 -5  : In order that the ‘WMT’ may be used to justify the withdrawal of ANH the following propositions must be established:

(a) that ANH is a medical treatment.

(b) that a patient’s consent is required for all, including life-sustaining, medical treatment.

(A corollary of this is that a patient can refuse life-sustaining medical treatment.)

(c) that a patient does not lose the right to refuse life-sustaining treatment by virtue of their incompetency.

Once this right is established, then those who may exercise the right on behalf of an incompetent patient must be identified, and the criteria that must be used by them in making the decision to withdraw life-sustaining treatment must be specified.

Conclusion 6 -6 : The arguments for classifying ANH as a ‘medical treatment’, though less than compelling, were accepted by both the Ward and Bland courts.

Conclusion 6 -7 : The Ward case established that a competent individual has the right to refuse medical treatment even if their death is the result of such a refusal.

Conclusion 6 -8 : The Ward and Bland cases held that treatment decisions for incompetent patients should be made on the basis of the patient’s ‘best interests’.

Conclusion 6 -9 : As a mechanism for resolving ‘end-of-life’ issues for PVS patients, the ‘WMT’ framework is intrinsically flawed in that its utility depends on the existence of a set of circumstances which are contingent and which, though of considerable legal importance, have no inherent ethical relevance.

Conclusion 6 -10 : It was acknowledged at many points in the various judgements in the Bland case, that a fitting resolution of the problem of ‘end-of-life’ decisions for PVS patients required a reformulation of the rules relating to liability for causing death; in contrast, the judgements in the Ward case made no such acknowledgements.

Conclusion 6 -11 : The relevance of ‘scarcity of resources’ to the issue before the court was acknowledged in the Bland case; however, the court considered that questions of ‘scarcity of resources’ could not be considered by the court in the absence of legislative intervention.  In contrast, the Ward case did not acknowledge the relevance of the concept of ‘scarcity of resources’ to the problem.

Conclusion 6 -12 : The criterion which the Bland case deemed necessary for the withdrawal of ANH namely that no ‘glimmerings of awareness’ be present, has in subsequent cases effectively been widened to include ‘no possibility for a meaningful life whatever’ or absence of significant cognitive function’.


 



[i] An amusing example is given by a recent Court of Appeal case which was concerned with whether a ‘floating house’ could be considered a ‘houseboat’.  It decided that as a matter of law a houseboat need not be boat-shaped, but that “... it was a question of fact and degree whether a craft consisting of a low rectangular platform with a two-storey prefabricated building erected on it diverged so far from the typical as no longer to merit the description ‘houseboat’.”

(Sussex Investments Ltd v Secretary of State for the Environment and Another. The Times 29.11.1997)

[ii] The ‘mischief rule’ is one such, whereby the problem which the original legislation was seeking to resolve (the ‘mischief’) is examined in an effort to determine the correct judicial approach to a problem unforeseen in the original legislation.

[iii] N.B.: This thesis is concerned with formulating a conceptual scheme which will permit a more fitting resolution of the problem concerned with ‘end-of-life’ decisions for PVS patients.  A secondary question is whether the courts could, in fact, have applied this proposed structure on the basis of existing law or whether enabling legislation would have been required, this latter question is a purely legal one and will not be examined.  Equally, in considering alternative conceptual structures, the emphasis will be on their potency for resolving the problem within a recognised legal framework and not on whether their utilisation would require legislation.

[iv] In Part 3, one such alternative structure is proposed which, it is there argued, not only resolves the problems associated with ‘end-of-life’ decisions for PVS patients but does so without occasioning the 'slippery slope' engendered by the withdrawal of medical treatment conceptual structure.

[v] i.e. a patient unable to consent to treatment.

[vi] As occurred, for example in Auckland Area Health Board v AG (Appendix C - number 17) where Thomas J. proposed that although the doctors in withdrawing life-sustaining treatment might be said to cause the death of the patient they did not ‘legally cause’ his death.

[vii] The Bland case at p.833.

[viii] The acronym ‘WMT’ is used as shorthand for ‘withdrawal of medical treatment’.

[ix] ibid. p.880.

[x] ibid. p.898.

[xi] ibid. p.885.

[xii] The acronym ‘ANH’ is the standard abbreviation for ‘Artificial Nutrition and Hydration’.

[xiii] e.g.  “An Order that all artificial nutrition and hydration cease.”  High Court unreported judgement at p.10.

[xiv] R. A. Duff, in Intention, Agency and Criminal Liability. (1990) suggested that to determine what the ‘goal’ of a procedure is we need only ask as to what must happen before the procedure would be adjudged to be successful. 

What is the goal in the withdrawal of artificial ventilation in cases such as the Carrie Coons or Karen Quinlan cases (discussed in Part 1)?  Is it the (peaceful) death of the patient, or simply that the patient may breathe unaided?  A consideration of the Carrie Coons case - who started to breathe unaided - or the case of David Glass (Appendix C - number 14) shows that, in such cases, the goal of the withdrawal is clearly the (peaceful) death of the patient.  This would imply that the death is the intended result of the procedure.

[xv] Auckland Area Health Board v AG (Appendix C - number 17) offers an interesting perspective on the question of causation.  Counsel had urged that the withdrawal of medical treatment could not be considered to be causing the death of Mr. L; Thomas J., however, found such an analysis to be unhelpful.  He considered the example of a polio victim who, unable to breathe, was being ventilated but who was desirous of remaining alive.  He suggested that 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.  He held that the question must be resolved not by an analysis of cause, but by an analysis of the lawfulness of the proposed course of action.

[xvi] The Bland case p.881.

[xvii] i.e. on causation.

[xviii] ibid. p.895.

[xix] The Ward case p.429.

[xx] ibid. p.423.

[xxi] ibid. p.462.

[xxii] The respective requirements are set out in Appendix C, numbers 1 and 2.

[xxiii] Smith and Hogan. Criminal Law. (1969 - 2nd ed.) p.47.

[xxiv] See Appendix C - number 2.

[xxv] Smith and Hogan op.cit. at p.37.

[xxvi] ibid. p.37 (speaking of some imaginary individual D).

[xxvii] ibid. p.38.

[xxviii] See also the footnote reference to Duff, Intention, Agency and Criminal Liability, at the beginning of Subsection 1.

[xxix] The Ward case; unreported judgement of the High Court at p.23.

[xxx] There are many judicial pronouncements to this effect; for example:

“It is important to emphasise that the court can never sanction steps to terminate life.”  [Hamilton CJ., the Ward case  p.423]

“ ... the court would never sanction positive steps to terminate the life of a person”  [Re J. (A Minor) (wardship: medical treatment) [1990] 3 All ER 930 at p.931].

[xxxi] The Bland case p.881.

[xxxii] ibid. p.898.

[xxxiii] ibid. p.823.

[xxxiv] ibid. p.831.

It is argued in Chapter 10 that of the rights that flow from the ascription of personhood to an individual the most fundamental is the ‘right to be let alone’: this implies that no intervention be made to an individual without his consent even if - perhaps, especially if - it was being done for his supposed ‘best interests’.  If such a wrongful intervention is made then the removal of the intervention is justified and this is so whether the removal of the intervention involves an act or an omission.  In short, the important concept is ‘intervention’; ‘act’ and ‘omission’ have had an historical importance because they function as a rough classificatory guide in that ‘interventions’ are usually ‘acts’ whereas ‘omissions’ are usually not interventions.  Lord Hoffman - in speaking of the ‘principle of inviolability’ and in suggesting that the prohibition is not against ‘acts’ as such but against introducing an ‘external agency of death’ (The Bland case at p.831) - suggests a similar analysis.

[xxxv] A recent BMA report is of interest:

“Where ventilatory support is to be withdrawn, for example, any medication which has the effect of suppressing the patient’s ability to breathe unaided should also be withdrawn.  Failure to do so could be interpreted, in law, as action taken with the purpose or objective of ending the patient’s life.”

[BMA (1999a) Withholding and Withdrawing Life-prolonging Medical Treatment : Guidance for decision making. 3C.17.4]

[xxxvi] Smith and Hogan op.cit. at p.36

[xxxvii] The Bland case p.815.

[xxxviii] Remembering that their motive is of no legal relevance.

[xxxix] ibid. p.444.

[xl] A recent BMA report is of interest in that it gives added reasons for regarding the giving of ANH as a medical treatment:

“The provision of nutrition and hydration by artificial means requires the use of medical or nursing skills to overcome a pathology in the swallowing mechanism, in the same way that the artificial provision of insulin is given to diabetic patients to overcome the body’s own inability to produce that substance.”

[BMA (1999a) Withholding and Withdrawing Life-prolonging Medical Treatment : Guidance for decision making. 1.3 .4]

[xli] See Appendix C - number 2

[xlii] The Ward case p.456.

[xliii] Andrews (1993a) p.1600.

[xliv] The Bland Case at p.882.

[xlv] Andrews (1993a) p.1600.

[xlvi] This came to light in a radio interview given by Dr. Howe (the neurologist in charge of Tony Bland) to RTE Radio on 26.5.1999.

[xlvii] The legal defence of ‘necessity’ gives a gloss on this rule to the effect that, in cases of urgency and when a patient is unable to communicate, medical intervention may be justified; see the judgement of Denham J. in the Ward case at p.454.

[xlviii] The Ward case p.427.

[xlix] ibid. p.454.

[l] ibid. p.431.

[li] ibid. p.442.

[lii] Such opinions were not uncommon in both the medical and legal professions up to recent times as is evidenced in attitudes towards Jehovah Witnesses who refused life-sustaining blood transfusions and towards the force feeding of anorexics and those on hunger strike.  A very recent example of such opinions is found in an English case which concerned the decision of Ian Brady, the so-called ‘Moors murderer’, to starve himself to death.  Brady embarked on his hunger strike because his application for remission of his life sentence had been refused and he did not wish to live the remainder of his life in prison without any hope of release.  He had been on hunger strike for 164 days and he was being fed, against his wishes, by means of a nasogastric tube.  Brady applied to the court for an order that his refusal to consent to the tube-feeding be respected, and the tube-feeding be discontinued.  The court, holding that the hunger strike was a symptom of his mental illness, refused the order sought on the grounds that the refusal was in Brady’s ‘best interests’.

[The Times and The Irish Times 11th March 2000].

[liii] ibid. p.426.

[liv] Smith and Hogan op.cit. p.137.

[lv] A recent case (Sec of State v Robb [1995] 1 F.L.R.), relying on the Bland judgement, has decided that a prisoner has the right to refuse nutrition.  However, the case of Ian Brady, mentioned above, seems to restore the status quo ante.

[lvi] The Ward case p.456; the observation was originally made by Lord Hoffman in the Bland Case.

[lvii] This is discussed more fully in Appendix C - number 2.

[lviii] In the case In re F see Appendix C - number 6.

[lix] i.e. at the first hearing of the case.

[lx] The Ward case p.805.

[lxi] The Bland case p.812.

[lxii] ibid. p.831.

[lxiii] ibid. p.833

[lxiv] see Appendix C - number 10.

[lxv] The Bland case p.868.

[lxvi] ibid. p.869.

[lxvii] ibid. p.872.

[lxviii] ibid. p.884.

[lxix] ibid. p.895.

[lxx] ibid. p.894

[lxxi] For further discussion see Appendix C - number 1.

[lxxii] The Ward case p.449-450.

[lxxiii] ibid. unreported judgement of the High Court p.23-5.

[lxxiv] ibid. p.434.

[lxxv] ibid. p.444.

[lxxvi] ibid. p.463.

[lxxvii] As to the possibility of spoon feeding a PVS patient with normal food, Jennett and Plum have stated:

“Chewing and teeth grinding are common and may go on for long periods; liquid and food placed in the mouth may be swallowed.” [(1972) at p.734]

Andrews has noted that:

“ ... there is no reason, apart from the time needed for its preparation, why liquidised ‘normal’ food should not be used.” [(1993 a) p.1600]

[lxxviii] A recent English case (Swindon and Marlborough N H S Trust v S) has considered the situation of a patient being cared for at home and permitted the withdrawal of life-sustaining treatment.  [The Guardian 10.12.1994.]

[lxxix] For example, in the Ward case the statement (at p.444) of Blayney J. that: "Normal food and drink could never be categorised as medical treatment."; though the judgement of Hoffman LJ. in the Bland case offers a different view.

[lxxx] The case of Karen Quinlan, for example, who survived for a number of years after her artificial ventilation had been removed pursuant to a court order gives some support to this distinction.

[lxxxi] Though the highly unusual case of Carrie Coons who awoke and started feeding after her feeding tube was removed by court order [see Andrews (1993a) p.1601] might argue to the contrary.

[lxxxii] The circumstance giving rise to Re R (Appendix C - number 11) bear an uncanny resemblance to this example: R had been fed by food syringed to the back of his mouth; the hospital authorities originally applied for orders permitting them to withhold ‘nutrition and hydration by artificial means’ and to withhold CPR (cardio-pulmonary resuscitation).  The application for the order concerning withdrawal of ANH was withdrawn from the court and replaced by an application for leave to begin tube-feeding; this was granted as was the original application for permission to withhold CPR.  The reason for the adoption of such convoluted procedures appears to have been that the cessation of syringe feeding is not on all fours with withdrawal of tube-feeding in that the arguments for classifying it as a ‘medical treatment’ rather than as a ‘food’ are considerably weakened.

[lxxxiii] Jeff McMahan, writing of the distinction between ‘killing’ and ‘letting die’, states:

“ ... it is difficult to believe that the way in which an agent is instrumental in the occurrence of an outcome could be more important than the nature of the outcome itself.”

A remark which seem apposite in the present context.

[McMahan. J. ‘Killing, Letting Die and Withdrawing Aid’ in Steinbock, Bonnie and Norcross, Alastair. (eds.) Killing and Letting Die. (1994) pp. 383-420 at p.413]

[lxxxiv] Quoted in John Passmore, A Hundred Years of Philosophy, p.428.

[lxxxv] The contrast is not so great under English law because of the requirement to seek the approval of the courts before ANH can be withdrawn.

[lxxxvi] The legal and the ethical analyses of the examples differ to such a great extent because (as discussed in Subsection (ii)) the law regards motive as irrelevant and it makes certain technical distinctions between directly and indirectly intended acts and between the legal responsibility for acts and for omissions.

[lxxxvii] The Bland case p.796.

The Practice Direction of March 1994 which laid down the procedure for a court applications in England in relation to treatment withdrawal for a PVS patient, suggested the wording:

“... may lawfully disconnect all life-sustaining treatment and medical support measures designed to keep (X) alive ...”

[emphasis added]; see Current Law Year Book (1994) at p.1028.

[lxxxviii] The Ward case p.9.

[lxxxix] The Bland case p.796.

[xc] ibid. p.876.  His analysis then considered whether circumstances existed where this could be lawful; he held that that such circumstances did exist.

[xci] ibid. p.895.

[xcii] ibid. p.889.

[xciii] ibid. p.891.

[xciv] The Ward case p.17.

[xcv] ibid. p.426.

[xcvi] ibid. p.432.

[xcvii] It was suggested earlier in this chapter that this was for reasons of ‘denial’.

See Conclusion 6 -2 : Part of the attractiveness of the ‘WMT’ to the Ward court was that it offered to the court the possibility of evading responsibility for occasioning the death of the Ward.  This evasion was accentuated by the decision of the Ward court not to require that in all future cases where the withdrawal of ANH was contemplated, an application be made to the court; this was in contrast to the Bland court  which did make such a requirement.

[xcviii] A possible solution to the problem of incorporating death into the theoretical framework for making ‘end-of-life’ decisions for PVS patients is developed in Part 3, and is based on the concepts of ‘a good death’ and ‘personhood’.

[xcix] This removes the usual justification for the propositions ‘killing is evil’ and ‘letting die is evil’ considered as absolute, or unqualified, propositions.

[c] Consider the example given in Auckland Area Health Board v AG (Appendix C - number 17) of a polio victim unable to breath and being ventilated, but desirous of remaining alive.  Thomas J. held that 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.

[ci] The BMA have recently addressed the issue of scarce resources:

 “It is obvious, however, that money spent caring for irreversibly and severely brain-damaged patients is money which cannot be used to treat other patients. This is an issue which needs to be acknowledged and addressed on a national scale as part of the debate on rationing and prioritising of resources. The BMA is concerned that, in reality, cost factors probably have a disproportionate influence on decision making for this very vulnerable patient group and is also concerned that the lack of a clear societal consensus on this most vexed area may unfairly leave doctors open to criticism.”

[BMA (1999a) Withholding and Withdrawing Life-prolonging Medical Treatment : Guidance for decision making. 3C.18.5]

[cii] Gillon (1993) p.1603.

[ciii] The Ward case p.459.

[civ] The Bland case p.880.

[cv] ibid. p.880:

”For these reasons, it seems to me imperative that the ... issues raised by this case should be considered by Parliament.”

[cvi] ibid. p.896.

[cvii] ibid. p.833.

[cviii] Grubb et al (1996a) at p.39.

[cix] Frenchay Healthcare NHS Trust v S [1994] 2 All ER 403; Appendix C - number 3.

[cx] Re G (Persistent Vegetative State) [1995] 2 F.C.R. 47; Appendix C - number 4.

[cxi] The Times 21st and 22nd March 1997; subsequently reported as Re D (Medical Treatment) [1998] 1 F.L.R. 411; [Appendix C - number 5].

[cxii] A practice note of March 1994 stipulated that virtually all cases of termination of ANH required the prior sanction of a High Court judge.

[Practice Note (Official Solicitor)(Persistent Vegetative State), March 1994; Current Law Year Book 1994 at p.1028.]

[cxiii] Frenchay Healthcare NHS Trust v S [1994] 2 All ER 403 at p.410.

[cxiv] ibid. p.407.

[cxv] ibid. p.408.

[cxvi] ibid. p.411.

[cxvii] ibid. p.409.

[cxviii] ibid. p.412.

[cxix] ibid. p.411.

[cxx] ibid.

[cxxi] This case is of interest in that it reinforces the arguments for proposals which were made in Chapters 4 and 5.  In Chapter 4 it was argued that a definition of PVS based on absence of ability to communicate rather than one based on a supposed absence of consciousness, would restore an important role to the family and carers of PVS patients; would permit end-of-life issues concerning PVS patients to be resolved in a much more appropriate fashion than at present; and would ensure that the opportunities for disagreement between family and medical staff would be considerably lessened (Conclusion 4 -17 : The persistent vegetative state is characterised by seeming wakefulness in the absence of an ability to communicate.).  In Chapter 5 it was argued that PVS patients should be treated as if they were in pain; and that doing so is not compatible with a diagnosis of PVS (Conclusion 5 -5 : All patients diagnosed as PVS, should be treated as if they are conscious and can experience pain).

[cxxii] The Times 22nd March 1997.

[cxxiii] ibid.

In so far as this was a judgement of the High Court it could not affect the authority of the earlier decisions.  (Frenchay and Re G had been considered by the Court of Appeal and Bland by the House of Lords.)

[cxxiv] The respective requirements are set out in Appendix C, numbers 1 and 2.