Chapter 8

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 8: Could the Ward case engender a ‘slippery slope’?

This chapter examines the form of argument known as the ‘slippery slope’ and discusses its possible application to the Ward case. More specifically, it examines whether the judgements in the Ward case were framed in such a fashion as to lay the grounds for the future widening of the categories where the withdrawal of life-sustaining treatment is considered to be an acceptable means of providing a solution from, as at present, cases of PVS and ‘near-PVS’, to cases of disability.

The chapter comprises five sections. Section 1 sets out the form of the slippery slope argument and considers its validly. Section 2 examines recent developments in English Case law in relation to the withdrawal of life-sustaining treatment in cases of non-terminal illness other than PVS and ‘near-PVS’.[i] Section 3 considers whether the Ward case laid the grounds for developments in Irish law similar to those outlined in Section 2 and whether this could be interpreted as a 'slippery slope'. Section 4 considers some proposals made by the BMA in July 1999 on the withdrawal of ANH.[ii] Section 5 draws some conclusions from the discussion.

Section 1: The 'slippery slope' - a valid form of argument?

The ‘slippery slope’ argument[iii] is often invoked in relation to a proposed policy change to suggest that - although the policy change is, in itself, desirable - other changes, which are not desired, will inevitably result if it is accepted. The validity of this argument is often questioned; David Lamb[iv] speaks of valid and invalid applications and he notes that some philosophers regard the slope argument as an example of fallacious reasoning. Such terminology seems misplaced - a confusion of categories.

In considering the argument it is important to distinguish between the slope argument considered as an abstract form of argument, and the argument considered in a particular concrete setting. Strictly speaking, questions as to the validity of an argument relate to its logical form i.e. the logical argument abstracted from any particular context, thus ‘modus ponens’ - If P then Q; P; therefore Q. - is a valid argument irrespective of the propositions P and Q. The slippery slope argument - perhaps with the exception of the so-called ‘logical form of the argument’ discussed below - does not exhibit any particular abstract logical structure; it exists only in its particularity and accordingly questions of its ‘validity’ are inappropriate. In a particular setting one can of course discuss the truth of a suggested slippery slope but this is nothing more than to acknowledge that if, in a particular social and political situation certain changes occur, then the predication that other changes will follow, may be true or false. But it is important to realise that this is a political, or sociological, or legal question; it is not a logical question.

This contrast between the argument considered in its abstract setting (where it is vacuous) and in a particular setting (where it may be considered true, not however because of any formal qualities of the argument but because of certain other circumstances that also exist in that particular setting) is also to be found in the so-called ‘Principle of Induction’, a brief examination of which may be helpful.

The Principle of Induction

The principle of induction is often suggested as the mechanism which allows us to move from the recognition that certain regularities occur in nature to a conclusion that they must recur. This, however, is something of a sleight of hand. It is not possible to deduce from the fact that the sun arose in the east yesterday morning, and indeed every morning since time immemorial, that it will do so tomorrow morning.[v] Logic gives us no assistance in resolving such doubts. We know from our experience that there are[vi] regularities in the universe, and from the very nature of regularity we assume that they will continue. If every time a child has met his generous uncle, a gift of sweets was forthcoming, then that child, in looking forward to a visit from his beloved uncle, will come to expect a gift of sweets; we, like Pavlov’s dogs, structure our lives on such expectations; indeed it is doubtful that we could remain sane in the absence, if not of the regularity, at least the expectation of such regularity. However, it is of no assistance to clear thinking to assume that there is some ‘Principle of Induction’ by whose help we can deduce that the sun will rise tomorrow, nor by whose help the child can deduce that his uncle will eternally produce confections. The postulation of such a principle can doubtlessly give some psychological comfort, and we can use it, like a favourite amulet, to attempt to hold the winds of chaos at bay but when standing on shifting sands, although words can allay the fear, they cannot still the sands.

P.F.Strawson has argued[vii] that it is absurd to suppose that induction can ever be justified by showing that it is really a part of deductive reasoning; any attempt to justify it by its success is to justify induction by induction itself, for any such attempt involves the presumption that what was successful in the past will be successful in the future. Thus, having recognised certain regularities in a particular series of occurrences, we may anticipate that these will continue to occur; in this we may be correct or incorrect; however, any attempt to appeal to some principle of induction from which we can deduce the future occurrence by arguing in the fashion -

‘X has occurred with regularity’

hence, by the principle of induction, there is some general law guaranteeing these occurrences from which we can deduce that:

‘X will continue to occur’

is pure sophistry. Wittgenstein argues similarly: Russell, in his introduction to Wittgenstein‘s Tractatus Logico-Philosophicus and speaking of Wittgenstein’s views, says:

“ ‘The events of the future,’ he says, ‘ cannot be inferred from those of the present. Superstition is the belief in the causal nexus.’ That the sun will rise to-morrow is a hypothesis. We do not know whether it will rise, since there is no compulsion according to which one thing must happen because another happens.” [viii]

However, in any particular instance of regularity of an occurrence ‘O’, we can (perhaps, by scientific means) investigate and attempt to establish some theoretical connection between the perceived regularity and some other regularity ‘R’ which we conceive of as being more fundamental. Having established a link between ‘O’ and the more fundamental regularity ‘R’, we can, perhaps, be somewhat more confident in our predictions in relation to ‘O’. Thus, for example, the perceived regularity in the tides when theoretically linked to the movements of the moon, is thereby linked to what is perceived to be a deeper rhythm and one more worthy of being relied upon.

Similarly, to suggest that there is some theoretical ‘slope argument’ which, from a proposed social change ‘X’ guarantees the occurrence of events ‘Y’, is erroneous. Events similar to ‘Y’ may have occurred subsequent to changes similar to ‘X’, in times past; however, we have no guarantee that they will do so in the future. At best we can attempt to analyse the past occurrences in the light of some theoretical model and - applying this same model to the present situation - attempt to predict future developments. It may well be that - as, perhaps, happened in the past - a particular proposed social change has economic consequences which in their turn may occasion further changes of social attitudes, which may lead to a demand for ‘Y’. However, there is no general slippery slope law; all is in the particular, a perfect case of ‘the devil being in the detail’.

This does not take from the historical recognition that social change often has particular characteristics; it often occurs, not in a uniform process of steady accretion, but in spurts of activity. It is much like an imagined battle between mediaeval armies over a terrain that is flat and difficult to defend, but where there are occasional ramparts. In such a battle the fighting will be concentrated on the ramparts as these are easily defended; once a rampart has been lost then the land behind it - being difficult to defend - will quickly be overrun and the armies will tend to regroup at the next defensible rampart. But the study of the ‘laws’ governing any such process of military advance or social change - if such exist - belongs to the fields of psychology or sociology but not to logic or philosophy.

Conclusion _{8
- 1} : The slippery slope argument considered as a general form of argument, cannot be considered to be valid. However, in particular circumstances the argument may imply true conclusions, the truth of the conclusions following by virtue of the particular circumstances rather than by virtue of any formal logical argument.

A logical form of the ‘slippery slope’ argument.

There is, however, one form of the argument which transcends the particular and can be considered as a general form of argument; Lamb calls it the ‘logical form of the slippery slope argument’. [ix] If the making of a proposed change ‘X’ is justified by recourse to certain principles ‘P’ and if ‘Y’ is equally justifiable in terms of the same principles ‘P’ but it asserted that ‘X’ will not lead to ‘Y’, then the argument takes the form:

“If ‘X is conceded there are no rational grounds for not conceding ‘Y’, because ‘P’ which was used to justified ‘X’, also justifies ‘Y’.”

Is this a valid form of argument? Is there any way to avoid the conclusion ‘Y’. Rachels suggests[x] that some distinguishing characteristic ‘C’ can often be found which applies to ‘Y’ but not to ‘X’; but surely such can occur only if the absence of ‘C’ was logically necessary to justifying ‘X’; if it was, then the true principle was ‘X and not-C’ and there can be no question of a justification of ‘Y’; if it was not, then ‘Y’ follows irrespective of the distinguishing characteristic. Lamb believes that the ‘logical version of the slippery slope argument’ is best thought of as a warning against loose concepts:

“And that is the point behind the logical version of the slope argument: once clear cut absolutes are replaced by indeterminate concepts moral boundaries can become a playground for sophistry.” [xi]

Hence, to avoid ‘Y’ we must seek to justify ‘X’ on some ground ‘Q’ which is narrower than ‘P’ and which will not carry the unwanted implication ‘Y’. For example: imagine a young child who wishes to stay up late on his birthday; the parent yields, conceding that it is a ‘special occasion’; a favourite uncle comes to visit and stays late, the child argues that this is equally a ‘special occasion’. The solution of course is to choose grounds just sufficient to justify what is required but no wider; in the child’s case he is allowed to stay up late because it is ‘his birthday which is his most special day of the year’.

Conclusion _{8
- 2} : The so-called ‘logical form of the slippery slope argument’ is to the effect that in justifying a particular conclusion the narrowest grounds possible should be used in order to avoid the danger of occasioning a 'slippery slope'.

In relation to the Ward case, for example, this implies that the withdrawal of life-sustaining treatment be justified on the narrowest grounds possible: justifying the withdrawal on the grounds of ‘best interests’ or by virtue of an ‘absolute quality of life’ judgement does not preclude the withdrawal of life-sustaining treatment in cases of even mild disability; whereas justifying the withdrawal on the grounds that the Ward had permanently lost the ability to communicate would limit the applicability of the argument.

Let us now examine how the ‘absolute quality of life’ judgements have been used in English law to justify the withdrawal of life-sustaining treatment from patients who were not terminally ill, were not PVS nor ‘near- PVS’, but who were disabled. The focus of the examination is to see whether these decisions to justify withdrawal of life-sustaining treatment in cases of disability, necessitated the introduction of any principles in addition to those already implicit in the Ward judgement.

Section 2: The withdrawal of life-sustaining treatment from non-terminally ill patients: the English experience.[xii]

Of the submissions made by the Official Solicitor in Bland case, one concerned the danger of generating a ‘slippery slope’:

“It is important to appreciate just how far the courts in this country have moved in relation to the treatment of the mentally incompetent in the course of less than four years. The first step was to hold that a mentally incompetent adult could be sterilised [xiii] ... The next development was the holding that life-sustaining treatment could be withheld from the dying ... The third step was the holding that life-sustaining treatment could be withheld from the patient who was not dying, on the ground that he should be spared pain and suffering[xiv] ... the Court of Appeal have now held that life-sustaining treatment can be withheld from an adult patient who is neither dying nor suffering pain and distress: the justification for this advance from In re J is said to be that the is no quality to the patient’s life. The House of Lords should not shirk the question: what will the next step be, and where will the process end?” [xv]

Before looking at the other English cases concerned with withdrawal of life-sustaining treatment it is necessary to first consider how these cases should be classified. Should the line of distinction be drawn between those cases concerned with PVS as against those dealing with severe disability or should the distinction be drawn differently?

The categorisation of cases dealing with withdrawal of life-sustaining treatment

It is possible to consider the English decisions on the withdrawal of life-sustaining treatment from non-terminally ill patients by dividing them into two categories: those with PVS, and those who were not PVS but were seriously disabled. Such a dichotomy suggests that the PVS and the disability cases were not of a kind; this is a distortion of the actual development because in both types of cases, the English courts:

(i) analysed the cases from within a medical conceptual framework;

(ii) saw a resolution of the cases as lying in the withdrawal of treatment; and

(iii) declared the ground for this withdrawal of treatment, as being in the ‘best interests’ or in the poor ‘absolute quality of life’ of the patient.

It is possible to argue that ‘absolute quality of life’ judgements were more a feature of the disability cases than of the Bland case (where ‘best interests’ was the preferred ground) and that a distinction can be drawn between them on this basis. This can be answered by noting, firstly, that Tony Bland was considered by the courts to be completely insensate so that to speak of his ‘best interests’ did not present quite the same difficulties as to speak of his ‘quality of life’;[xvi] secondly, the Bland judgements relied on the case of Re J [xvii] which decision was based on an ‘absolute quality of life’ judgement; thirdly, (as was shown in Chapter 7) ‘best interests’ judgements in cases such as the Bland case necessitate the use of ‘absolute quality of life’ judgements.[xviii]

The correct distinction between the Bland case and the earlier cases of disability is that the Bland case involved not just the withdrawal of life-sustaining treatment but withdrawal of ANH. Had the Bland case been concerned simply with the withdrawal of life-sustaining treatment (other than ANH) then it could quite easily have been decided within the framework laid down by earlier cases.[xix]

Conclusion _{8
- 3} : In classifying the English cases of withdrawal of life-sustaining treatment from non-terminally ill patients; the most meaningful distinction is that between withdrawal of ANH and withdrawal of other medical treatment, and not that between PVS and cases of disability.

This classification is confirmed by the fact that, in England, application to the High Court is required in all cases where withdrawal of ANH is contemplated but that there is no such requirement in relation to the withdrawal of other forms of medical treatment.[xx]

Let us now return to the question posed by the Official Solicitor: “What will the next step be, and where will the process end?” We first look at developments in English law in allowing the withdrawal of ANH and then examine cases where the withdrawal of other forms of life-sustaining treatment was permitted.

The next step: withdrawal of ANH

Subsequent to the Bland case, a number of cases concerning the withdrawal of ANH came before the English courts. Three of these cases concerned PVS or ‘near- PVS’ patients and have been discussed in Chapter 6, Section 4 and are listed in Table 8-1.

Frenchay v S.	1994	PVS - Emergency decision on treatment withdrawal without the opportunity for independent medical assessment.		3
Re G	1994		PVS - more profound vegetative state than Tony Bland; family not unanimous on the withdrawal of ANH.	4
Re D (Medical Treatment)	1997	‘borderline’ PVS - tube had become disconnected; whether an operation to reinsert the tube should be performed.		5

Table 8 -1: Some reported English cases of PVS patients (subsequent to Bland) from whom ANH was withdrawn.[xxi]

The facts of Frenchay v S and Re D appear similar to the Ward case and are suggestive of ‘near- PVS’ rather than PVS; though in Frenchay v S there was (somewhat equivocal) medical testimony to the effect that the patient might have some ability to communicate. However, notwithstanding these facts the courts held that, in permitting the withdrawal of ANH, they were not widening the categories set out in the judgements in the Bland case.[xxii] The conclusion drawn in Chapter 6 was that the criteria had, in fact, been widened to include ‘near- PVS’.[xxiii]

There is one reported case where the withdrawal of ANH was considered and which did not concern a PVS patient: Re R (Adult: Medical Treatment). [xxiv] ‘R’ was a 23 year old who had been born with a serious malformation of the brain and with cerebral palsy; he was unable to chew and his food was syringed into the back of his mouth. The original court application had asked for permission to withhold life sustaining treatment including ANH; the summons was subsequently amended to seek only permission to withhold cardio-pulmonary resuscitation and antibiotics from R in the event of his developing a potentially life threatening infection. It was agreed by all parties that it was in R’s ‘best interests’ to have a gastrostomy tube inserted and that accordingly it would be premature to consider withdrawal of ANH at this stage. The fact that the medical opinion changed from being in favour of ANH being withdrawn to unanimously in favour of tube feeding being commenced, without apparently any change in R’s medical condition, appears on its face to be designed to manipulate the facts to fit into accepted legal categories:[xxv] once tube feeding had been commenced then a fresh application could be brought[xxvi] for its cessation thus circumventing the objection that the criteria in the Bland case for the withdrawal of ANH were being widened to include withdrawal of syringe feeding (though not, however, circumventing the objection that R was not PVS).

The current situation in England appears to be that the courts have given permission to withdraw ANH only in cases of PVS or ‘near-PVS’ and not in cases of disability.

Conclusion _{8 - 4} : In England, the withdrawal of ANH has been restricted to cases of PVS or ‘near- PVS’; prior approval of the court is required in all such cases.

The next step: withdrawal of life sustaining medical treatment other than ANH

Grubb writing in 1996[xxvii] found it surprising that so few cases had come before the English courts since the Bland decision and he suggested as a possible reason, that 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, do require such approval). To the best of my knowledge the only reported cases dealing with the withdrawal of life-sustaining treatment (other than ANH) concern non-terminally ill patients who were disabled; none relate to PVS patients; some of these cases are now considered; they are listed in Table 8-2 and are summarised in Appendix C.

Re B (a minor) (wardship: medical treatment )	1981 (reported in 1990)	A baby born with Down Syndrome also had an intestinal blockage which could be cured without difficulty. The parents opposed the operation ; whether the parents wishes should be respected.	7
Re J (a minor)(wardship: medical treatment)	1990	Withholding life-saving treatment from a 4-month old baby who was grossly handicapped but who was not dying	10
Re R (Adult: Medical Treatment)	1996	R, a 23 year old, had malformation of the brain and cerebral palsy; his psychiatrist had signed a ‘do not resuscitate order’; whether such an order appropriate.	11
T (A Minor) (Wardship: Medical treatment )	1996	The High Court supported a mother’s right to refuse consent to a life saving operation for her 18-month-old child, against the judgement of the child’s doctors; ‘best interests’ can include non-medical factors.	12
Ex parte Glass	1999	Mother objected to withdrawal of ventilation from her 12-year-old severely disabled son.	14

Table 8 -2: Some reported English cases of non-terminally ill, disabled patients from whom life-sustaining treatment was withdrawn.[xxviii]

In Re B the decision to withdraw life-sustaining treatment was originally upheld by the courts but overturned on appeal on the grounds that the withdrawal of treatment - although in accord with the wishes of the parents - was not in the ‘best interests’ of the child. This decision laid down the principle that the parent’s interests were separable from those of the child and that the child’s interests were paramount. In Re R the decision of the court to withhold life-sustaining treatment can be justified as an ‘incremental quality of life’ judgement; [xxix] all of the other cases listed in Table 8 - 2 involved ‘absolute quality of life’ judgements. These ‘absolute quality of life’ judgements (in conjunction with the medical conceptual framework which had been adopted by the courts) were sufficient to justify the withdrawal of life-sustaining treatment; no additional legal principle was required. The essential principle underlying all of these cases is that:

“... the correct approach 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 the circumstances such a life would be so afflicted as to be intolerable to that child.” [xxx]

Conclusion _{8
- 5} : The English judgements which permitted the withdrawal of life-sustaining treatment from non-terminally ill, but disabled, patients were based on a consideration of the ‘best interests’ or the ‘absolute quality of life’ of the patients and required no application of principles of law additional to those which are implicit in the Ward judgements.

Section 3: The Ward case and the 'slippery slope'

There has been no counterpart in Irish law to the English case In re J,[xxxi] in fact, the withdrawal of life-sustaining treatment for reasons of disability or marginal awareness per se has never been directly considered by the Irish courts, hence the Ward case is seminal to the future development of Irish law relating to the withdrawal of life-sustaining treatment for non-terminally ill patients. [xxxii] Such cases must eventually arise and - by virtue of the doctrine of precedent - be decided within the framework set out in the Ward judgements.

I will first consider the possibility that the Ward decision could be used to justify the withdrawal of life-sustaining treatment in cases of disability similar to the English cases discussed in Section 2, and then consider other aspects of the Ward decision which favour the development of a 'slippery slope'.

The application of the Ward decision to cases of disability.

In the Ward case, counsel for the Attorney General (referring to Re B [xxxiii]): submitted that

"... the case uniquely illustrates why the quality of life should not be adopted as a test." [xxxiv]

None of the judgements in the Ward Case give any detailed consideration to the decision in Re B nor suggest how it might be distinguished from the Ward case; although there were judicial pronouncements to the effect that the Ward decision was to be construed strictly on its facts and had no applicability to cases of disability. [xxxv] Hamilton CJ., for example, said:

“... my ruling in this matter will be based on and relate only to the circumstances and rights of this particular ward. ... It is important to emphasise that the court can never sanction steps to terminate life ... Even in the case of the most horrendous disability, any course of action aimed at terminating life or accelerating death is unlawful." [xxxvi]

O’Flaherty J. was equally forthright:

“It must be clear that our decision should not be regarded as authority for anything wider than the case with which we are confronted ... the circumstances of the current case are distinguishable from the position as regards, for example, a seriously mentally handicapped person. A mentally handicapped person is conscious of his or her situation and is capable of obtaining pleasure and enjoyment from life. It is fanciful to attempt to equate the position of the ward in this case with that of a person whose life has been impaired by handicap. The analogy is both false and misleading; the quality of the ward’s life was never in issue; she is not living a life in any meaningful sense. We are concerned here only with allowing nature to take its course and for the ward to die with dignity. We are not thereby going down any slippery slope or stepping into any abyss.” [xxxvii]

However, these statements were not integral to the judgements; they are of a type known as ‘obiter dicta’ [xxxviii] (that is, not strictly necessary to the ruling of the court) which do not constitute a precedent and are not of binding authority in future cases. For example, the Bland court was as assertive as the Ward court in stating that its decision was to be strictly construed - Sir Thomas Bingham in Frenchay v S noted that :

“The 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.” [xxxix]

Yet having noted this strict admonition, the learned judge then went on to apply the Bland decision to the facts in Frenchay despite the fact that one medical expert witness had suggested that it might be possible to establish communication with the patient - a radically different scenario from the Bland case.

It is obvious that the Ward court regarded with disapproval the possibility that its decision might subsequently be applied to cases of disability; however, it is difficult to avoid the conclusion that the statements of disapproval - though, without doubt, sincerely made - are purely rhetorical. No logically coherent attempt is made to draw operative distinctions between cases of severe disability and the situation of the Ward - O’Flaherty J. seeks to draw a distinction by noting that a mentally handicapped person is conscious,[xl] yet the (albeit limited) consciousness of the Ward is not disputed! [xli]

Conclusion _{8
- 6} : Although the judges in the Ward case did not wish their decision to be used to justify the withdrawal of life-sustaining treatment in cases of disability, they provided no coherent reason why, in situations similar to the English disability cases, it could not be so used.

Other aspects of the Ward decision favouring the development of a 'slippery slope'

Four such aspects are identified:

(i) The withdrawal of life-sustaining treatment is not restricted to cases where consciousness is believed to be absent.

(ii) The withdrawal of ANH is, in law, assimilated to the withdrawal of other life-sustaining treatments.

(iii) The ethical importance to be attached by medical practitioners to the withdrawal of ANH is obscured by its assimilation to other medical treatments; this tendency is exacerbated by the court’s insistence that the withdrawal of ANH is not a cause of death.

(iv) The unanimous decision of an incompetent patient’s[xlii] family and medical carers to withdraw life-sustaining treatment is (if made bone fide and in the patient’s ‘best interests’) legally binding.

(i) The withdrawal of ANH is not restricted to cases where consciousness is absent.

Whereas the Bland judgements were insistent that their decision applied only to insensate patients the Irish court not only applied the Bland principles to a case where there was some level of awareness[xliii] but surprisingly this very awareness became - in the words of Lynch J. - a motivating force for the withdrawal of life-sustaining treatment:

“... but if such minimal cognition as she has includes an inkling of her catastrophic condition, then I am satisfied that that would be a terrible torment to her and her situation would be worse than if she were fully PVS.” [xliv]

The concept of ‘consciousness’ is playing a truly paradoxical role in discussions of withdrawal of life-sustaining treatment: on the one hand, when discussing PVS patients its supposed absence serves as a further reason for treatment withdrawal; yet in considering ‘near-PVS’ patients its existence is considered as a reason for treatment withdrawal. Egan J. (in his dissenting judgement) noted that all parties appeared to accept that if there were no cognitive function then treatment could be withdrawn; he distanced himself from this proposition, and continued:

“ ... this is not a case of no cognitive function ... If slightly more cognitive function existed, would a right to withdraw sustenance still be claimed to be permissible? Where would the line be drawn?” [xlv]

To this question there is no answer, nor hint of an answer, in the judgements of his colleagues.

If, to the judges in the Bland case, being insensate was the Rubicon which was not to be crossed,[xlvi] to the judges in the Ward case, such a boundary was crossed without even an acknowledgement.

Conclusion _{8
- 7} : The fact that the court acknowledged that the Ward had some level of awareness removes the most important barrier to the application of its decision to cases of disability.

(ii) The assimilation, in law, of withdrawal of ANH to withdrawal of other treatments.

The Ward court, unlike the Bland court,[xlvii] did not stipulate that a prior application be made to the court in cases where the withdrawal of ANH was contemplated[xlviii] and drew no distinction between the withdrawal of ANH and the withdrawal of other forms of life-sustaining treatment. The conclusion follows that:

Conclusion _{8
- 8} : In that the Ward judgements - unlike the Bland judgements - made no distinction between the withdrawal of ANH and the withdrawal of other forms of life-sustaining medical treatment, the withdrawal of ANH would be justified under Irish law in cases of disability where it would not be justified under English Law.

For example, in a situation similar to Re R [xlix] (where under England law it was necessary to distinguish between withdrawal of ANH and a decision not to resuscitate) no such distinction would be required under Irish Law.

(iii) The assimilation, in medical practice, of ANH to other medical treatments.

The BMA has noted that, to the courts:

“Artificial nutrition and hydration are perceived as different from other medical treatments which can be withheld, such as antibiotics.” [l]

This difference must, of course, be reflected in English medical practice and doubtlessly results in decisions to withdraw ANH being regarded with considerably greater seriousness that are other treatment - including treatment withdrawal - decisions.[li] The refusal of the Ward court to make this distinction has as a consequence that medical decisions to withdraw ANH are assimilated to more routine medical decisions and their ethical importance is obscured. The insistence by the Ward court - in contrast to the Bland Court - that the withdrawal of life-sustaining treatment is not the cause of the death[lii] further exacerbates this tendency particularly in situations where withdrawal of ANH occurs in the absence of court supervision.

Conclusion _{8
- 9} : The ethical importance to be attached by medical practitioners to the withdrawal of ANH is obscured by its assimilation to other medical treatments; this tendency is exacerbated by the Ward court’s insistence that the withdrawal of ANH is not a cause of death.

(iv) The legal competency of the family and medical carers, if unanimous.

The unanimous decision of an incompetent patient’s family and medical carers to withdraw life-sustaining treatment appear to be legally binding, if made bona fide and in their ‘best interests’; there is no requirement that any application be made to the courts before treatment is withdrawn.[liii] This appears to be the position set out by Lynch J. in the High Court and approved of by Denham J. in the Supreme Court:

“If they [liv] are unanimous that a form of treatment should not be continued, they are competent to make such a decision and carry it out in accordance with law. If there is no unanimous agreement, then an application should be made to the court for directions.” [lv]

Although it is clear that in all but the most exceptional cases the patient’s interests find full expression in the wishes of the family and the medical carers particularly when these are in agreement; it is important to realise - as is shown by the English case Re R [lvi] - that this is not necessarily so. R was a 23 yr. old man with severe cerebral palsy and malformation of the brain, both his family and his medical carers were in agreement that it was in his ‘best interests’ that treatment should be withdrawn, the case came before the courts by way of application to the court by a group concerned with the rights of the disabled. Denham J.’s decision that the family and carers are, if they are unanimous, competent; suggests that third parties may have no locus standi to apply to the courts on behalf of the patient unless they can cast doubt on the bona fides of the judgements of either the family or the carers. This would militate against a case such as Re R ever coming before the Irish courts; it would also hinder cases such as Re B [lvii] - which concerned a simple operation to remove an intestinal obstruction in a Down Syndrome baby - from being brought to the attention of the courts because in that case there was initial agreement between the family and the medical cares not to proceed with the operation.

Conclusion _{8
- 10} : The Irish courts, by relinquishing their supervisory jurisdiction over cases where a patient’s family and medical carers unanimously agree that the withdrawal of life-sustaining treatment is in a patients ‘best interests’, may facilitate the development of a 'slippery slope'.

Section 4: BMA (1999) proposals on the withdrawal of life-sustaining treatment.

The problematic nature of the definition of PVS was discussed at length in Chapter 4 and it was noted that PVS was often conflated with other medical conditions which were theoretically distinct from it. The Tresch study on misdiagnosis,[lviii] for example, expressed surprise at the high level of dementia[lix] amongst a test population of patients who had been previously diagnosed as PVS. Childs noted that ‘PVS’ was ‘an area fraught with confusion’. [lx] It seemed that ‘PVS’ was in danger of becoming a ‘catch all’ term which could be used to refer to any prolonged state of minimal awareness where recovery was seen as unlikely. Such a development was noted by McQuillan who, writing as far back as 1991, commented:

“In recent years, some researchers have emphasised the essentially clinical nature of the ‘vegetative state’ and have attempted to extend its limits to include the end stage of any chronic, progressive, neurodegenerative disorder at one end of life and to compare it with anencephaly at the other.” [lxi]

These problems have been considerably exacerbated by the use of the concept of ‘near-PVS’ which by its very nature has less well-defined boundaries than PVS. The danger was that since withdrawal of ANH was permitted in cases of PVS, a 'slippery slope' would be created whereby withdrawal of life-sustaining treatment (and of ANH) would also be seen as a solution to cases of dementia and other cases of minimal awareness.[lxii]

The BMA - in guidelines on PVS issued in 1996 - insisted that because PVS was a distinct condition separable from other cases of minimal awareness there was no risk that, in permitting the withdrawal of ANH in cases of PVS, a 'slippery slope' would be generated:

“It [lxiii] considers PVS to be sufficiently discrete and extreme that its management can be defined, without raising implications for other categories of severe handicap.” [lxiv]

Yet within two years the BMA had stated:

"However, the Association recognizes the difficulties associated with saying with certainty that patients are in PVS as opposed to any other low responsive state, ... The BMA has expressed the view that the important factor making withdrawal of artificial nutrition and hydration ethically acceptable is the loss of specific and definable neurological pathways leading to permanent loss of sensitivity to external stimuli and difficulty in swallowing." [lxv]

I wish to suggest that the BMA is not an impartial commentator in this debate but has specific proposals on the use of withdrawal of ANH as a mechanism for resolving ‘end-of-life’ decisions for patients in low awareness states and that the BMA have manipulated the debate on the withdrawal of ANH from PVS patients in furtherance of its own proposals. These are serious charges which I wish to examine separately, but before doing so I wish to outline the proposals made by the BMA in 1999 on the withdrawal of ANH.

The BMA (1999) proposals

The BMA make two main proposals:

(i) That the requirement for prior court approval for the withdrawal of ANH be removed[lxvi] and replaced by additional medical safeguards.[lxvii]

(ii) That the withdrawal of ANH be permitted in cases other than PVS.

The medical conditions for which withdrawal of ANH might be considered to be appropriate are not clearly specified and the BMA proposals differ not only between documents but even within the same document; they appear to include:

“... other low responsive state ... permanent loss of sensitivity to external stimuli ...” [lxviii]

“... severe dementia or who have suffered a severe stroke and have little or no awareness of their surroundings and no prospect of recovery.” [lxix]

“... Alzheimer's disease or Motor Neurone Disease ... no hope of recovering more than very minimal levels of awareness of their surroundings. They may lack ability to interact with others or capacity for self-directed action.” [lxx]

“... profound and irreversible dementia or have suffered a stroke which has left them similarly irreversibly brain damaged.” [lxxi]

“... low awareness states which prevent patients from interacting in any way with people around them ... ” [lxxii]

A third area of discussion concerns the effect of scarcity of resources on decision making but the BMA does not appear to have made any specific proposals in this area.[lxxiii]

It is ironic that both of the BMA proposals outlined above are, to some extent, already part of Irish law[lxxiv] whilst neither of the BMA proposals are consonant with current English law.

Conclusion _{8 - 11} : Current BMA (1999) proposals on the withdrawal of ANH are more compatible with existing Irish law that with current English Law in that the Ward decision permits

(i) the withdrawal of ANH from patients who are not strictly PVS.

(ii) the withdrawal of ANH without prior application to the courts.

The BMA: an impartial commentator?

The partiality of the BMA has been questioned in earlier chapters: in Chapter 4, in relation to the BMA’s insistence that cases of recovery from PVS were in reality cases of misdiagnosis;[lxxv] in Chapter 7, in respect of the overly wide interpretation of Re R where the decision to withhold cardio-pulmonary resuscitation is capable of being justified solely on ‘incremental quality of life’ grounds.[lxxvi] Two other examples are worthy of note:

(i) The BMA have suggested that:

“ ... some court cases which have authorized the withdrawal of artificial nutrition and hydration have done so from patients who could not be said to be in PVS as defined in clinical guidance from the Royal College of Physicians.” [lxxvii]

BMA have drawn the conclusion that it is not the concept of ‘PVS’ that is the crucial ingredient in these cases, but the ‘loss of specific and definable neurological pathways leading to permanent loss of sensitivity to external stimuli and difficulty in swallowing.’ [lxxviii]

Thus the imprecision in the definition of PVS has been used, not as a reason for seeking greater clarity in the definition of PVS, but for its jettisoning.

(ii) The BMA appear to argue that because the Bland case - in laying down the requirement that court approval was necessary before ANH withdrawn - concerned a case of PVS, the requirement applies only to such patients:

This interpretation seeks to locate the importance of the Bland judgement in the fact that it dealt with a PVS patient rather than in its sanctioning the withdrawal of ANH. Such an interpretation is bizarre; particularly so in view of the exhaustive discussion in the judgements in the Bland case on whether ANH could be considered to be a ‘food’ (and accordingly its withdrawal prohibited as being tantamount to murder); the BMA interpretation would imply that an application to the court for permission to withdraw ANH was required if no awareness is present but not required if some awareness were present and this despite Lord Browne-Wilkinson’s assertion that:

“I must again emphasise that this is an extreme case where it can be overwhelmingly proved that the patient is and will remain insensate ... Unless, as I very much hope, Parliament reviews the law, the courts will be faced with cases where ... the patient has very slight sensate awareness. ... my decision does not cover such a case.” [lxxx]

Conclusion _{8
- 12} : The BMA’s overly wide interpretations of Re R and it insistence that the requirement (laid down in the Bland case) that the permission of the courts be sought before ANH was withdrawn, applied only to cases of PVS, are suggestive of a lack of impartiality in these matters.

The BMA: manipulating the debate on the withdrawal of life-sustaining treatment?

The BMA (1999) proposals on withdrawal of life-sustaining treatment can be formulated independently of the concept of PVS:

(i) The criterion for withdrawal of life-sustaining treatment (other than ANH) should be ‘minimal awareness’;

(ii) Food, whether administered by syringe or spoon or cup, should not be withdrawn once a patient retains the ability to swallow.[lxxxi]

(iii) ANH may be withdrawn in circumstances where the withdrawal of other life-sustaining treatment is permitted provided that specific additional medical [lxxxii] safeguards have been observed.

Thus, the concept of PVS has been effectively jettisoned from the debate on the withdrawal of life-sustaining treatment. This raises the question:

Could the withdrawal of ANH from the ‘minimally aware’ elderly have been placed on the political agenda in the absence of the Ward and Bland cases?

I suggest that it could not and that, in the debate on the withdrawal of life-sustaining treatment, PVS has functioned simply as a stepping stone to enable the wider issue of the withdrawal of life-sustaining treatment from the minimally aware to be raised; this shows the magnitude of the 'slippery slope' implicit in the Ward and Bland cases.

The BMA (1999) proposals have caused widespread controversy: The Times reported that:

“More than 6,000 doctors are expected to support the launch of the Medical Ethics Alliance, an umbrella group that aims to fight the proposals ...” [lxxxiii]

The proposals were made against a background of widespread concern in the English press that ANH (and indeed food and water) was being withdrawn from some elderly patients in circumstances which appeared to be unlawful. For example, the BBC news reported that:

“Police are reported to be investigating 60 cases involving pensioners who died after allegedly being deprived of food and water by hospital staff.” [lxxxiv]

There also have been allegations - by such as the Down Syndrome Association - of discrimination by doctors in the treatment of disabled infants.[lxxxv]

In a climate where it appears that the current regulations as to the withdrawal of life-sustaining treatment are being flouted, proposals to further widen the categories where the withdrawal ANH and other life-sustaining treatment is permitted appear even less capable of being ring-fenced from the disabled than were earlier proposals.

Conclusion _{8
- 13} : The BMA (1999) proposals on the withdrawal of ANH are not restricted to PVS patients but appear to encompass all patients who have minimal awareness. These proposals are even more capable of being extended to the disabled than were the original proposals to restrict withdrawal of ANH to PVS patients - proposals which at the time the BMA insisted had no “implications for other categories of severe handicap”. [lxxxvi]

Section 5: Conclusions

The 'slippery slope' argument is to the effect that in permitting certain social changes to occur (changes which may in themselves be desirable) other changes which are less desirable will necessarily follow. In the context of the Ward decision, the 'slippery slope' argument implies that once the withdrawal of life-sustaining treatment is permitted from one group of non-terminally ill patients (such as PVS patients) then legal arguments for the withdrawal of life-sustaining treatment from other groups of non-terminally ill patients - such as the severely disabled or the elderly or those with ‘minimal awareness’ - will be more difficult to rebut.

Considered as a purely logical argument, the 'slippery slope' argument cannot be given an abstract formulation and cannot be considered to be valid; however, one form of the argument (the so-called ‘logical form’) can be abstractly formulated but, on analysis, is seen to be not a general form of argument, but rather a principle to the effect that when deciding contentious questions the narrowest possible grounds should be offered in their justification. The Ward decision, in that it was not decided on the narrowest possible grounds, breaches this principle. Though the 'slippery slope' argument - as a general form of argument - lacks validity it may nonetheless in particular circumstances imply true conclusions; however, the truth of such conclusions follows by virtue of particular sociological or political circumstances and not by virtue of any formal logical rule. [lxxxvii]

On analysing the English judgements which permitted the withdrawal of treatment from non-terminally ill patients the most meaningful distinction is found to be not that between the PVS cases and those cases of severe disability - because both of these are dependent on the same theoretical framework namely permissibility of using ‘absolute quality of life’ judgements in the making of medical treatment decisions - but between cases of withdrawal of ANH and the withdrawal of other forms of life-sustaining treatment. English law - unlike Irish law - safeguards this distinction in that the withdrawal of ANH is permitted only in cases of PVS and then only with the prior approval of the courts.[lxxxviii]

This leads to the main conclusion of this chapter which is that the decision in the Ward case facilitated the development of a 'slippery slope' despite the protestations to the contrary in the various judgements. This was not because of the decision to withdraw ANH per se but primarily because of the ground used to justify the decision; other aspects of the judgements also contributed to the same effect, in particular:

(i) The Ward case - unlike the Bland case - did not insist that application be made to the court for permission to withdrawal of ANH in subsequent cases; this meant that the Irish courts relinquished their supervisory role in this area.

(ii) The Ward case - unlike the Bland case - did not distinguish between withdrawal of ANH and withdrawal of other medical treatments. This had the effect that the ethical importance to be attached by medical practitioners to the withdrawal of ANH is obscured by its assimilation to other medical treatments; this tendency is exacerbated by the Ward court’s insistence that the withdrawal of ANH is not a cause of death.[lxxxix]

The magnitude of the implications of the Ward decision are also made manifest when viewed in the light of current BMA (1999) proposals on the withdrawal of life-sustaining treatment; for it then becomes evident that these proposals - which would considerably widen the categories where, and the conditions under which withdrawal of ANH is permitted - are more compatible with existing Irish law than with current English law.[xc]

____________

The conclusions which were established in this chapter are:

Conclusion _{8 - 1} : The slippery slope argument considered as a general form of argument, cannot be considered to be valid. However, in particular circumstances the argument may imply true conclusions, the truth of the conclusions following by virtue of the particular circumstances rather than by virtue of any formal logical argument.

Conclusion _{8 - 2} : The so-called ‘logical form of the slippery slope argument’ is to the effect that in justifying a particular conclusion the narrowest grounds possible should be used in order to avoid the danger of occasioning a 'slippery slope'.

Conclusion _{8 - 3} : In classifying the English cases of withdrawal of life-sustaining treatment from non-terminally ill patients; the most meaningful distinction is that between withdrawal of ANH and withdrawal of other medical treatment, and not that between PVS and cases of disability.

Conclusion _{8
- 4} : In England, the withdrawal of ANH has been restricted to cases of PVS or ‘near- PVS’; prior approval of the court is required in all such cases.

Conclusion _{8 - 5} : The English judgements which permitted the withdrawal of life-sustaining treatment from non-terminally ill, but disabled, patients were based on a consideration of the ‘best interests’ or the ‘absolute quality of life’ of the patients and required no application of principles of law additional to those which are implicit in the Ward judgements.

Conclusion _{8 - 6} : Although the judges in the Ward case did not wish their decision to be used to justify the withdrawal of life-sustaining treatment in cases of disability, they provided no coherent reason why, in situations similar to the English disability cases, it could not be so used.

Conclusion _{8 - 7} : The fact that the court acknowledged that the Ward had some level of awareness removes the most important barrier to the application of its decision to cases of disability.

Conclusion _{8 - 8} : In that the Ward judgements - unlike the Bland judgements - made no distinction between the withdrawal of ANH and the withdrawal of other forms of life-sustaining medical treatment, the withdrawal of ANH would be justified under Irish law in cases of disability where it would not be justified under English Law.

Conclusion _{8 - 9} : The ethical importance to be attached by medical practitioners to the withdrawal of ANH is obscured by its assimilation to other medical treatments; this tendency is exacerbated by the Ward court’s insistence that the withdrawal of ANH is not a cause of death.

Conclusion _{8 - 10} : The Irish courts, by relinquishing their supervisory jurisdiction over cases where a patient’s family and medical carers unanimously agree that the withdrawal of life-sustaining treatment is in a patients ‘best interests’, may facilitate the development of a 'slippery slope'.

Conclusion _{8 - 11} : Current BMA (1999) proposals on the withdrawal of ANH are more compatible with existing Irish law that with current English Law in that the Ward decision permits

(i) the withdrawal of ANH from patients who are not strictly PVS.

(ii) the withdrawal of ANH without prior application to the courts.

Conclusion _{8 - 12} : The BMA’s overly wide interpretations of Re R and it insistence that the requirement (laid down in the Bland case) that the permission of the courts be sought before ANH was withdrawn, applied only to cases of PVS, are suggestive of a lack of impartiality in these matters.

Conclusion _{8 - 13} : The BMA (1999) proposals on the withdrawal of ANH are not restricted to PVS patients but appear to encompass all patients who have minimal awareness. These proposals are even more capable of being extended to the disabled than were the original proposals to restrict withdrawal of ANH to PVS patients - proposals which at the time the BMA insisted had no “implications for other categories of severe handicap”. [xci]

[i] The English legal judgements dealing with PVS and ‘near-PVS’ have been discussed in Chapter 6, Section 4; see also Appendix C.

[ii] BMA. Withholding and Withdrawing Life-prolonging Medical Treatment : Guidance for decision making. July 1999

[iii] This form of argument is also called the ‘thin end of the wedge’, the ‘sorites’, or the ‘heap’ argument.

[iv] David Lamb, Down The Slippery Slope: Arguing in Applied Ethics(1988).

[v] Though the opening sentence of Samuel Beckett’s novel Murphy offers a different perspective:

“The sun shone, having no alternative, on the nothing new.”

[vi] More accurately ‘have been’.

[vii] John Passmore, A Hundred Years of Philosophy at p.459.

[viii] Ludwig Wittgenstein, Tractatus Logico-Philosophicus at p. xvi [emphasis in original].

[ix] Lamb op. cit. (p.3) ascribes this analysis of the argument to Rachels.

[x] ibid.

[xi] ibid. p.4

[xii] The cases referred to in this section are considered more fully in Appendix C.

[xiii] In re F Appendix C - number 6.

[xiv] Re J Appendix C - number 10.

[xv] The Bland case at p.839 [emphasis in original].

[xvi] Lord Mustill refused to base his judgement on the concept of ‘quality of life’ but based it on the grounds of ‘best interests’ arguing that the ‘best interests’ of Tony Bland originally justified the commencement of ANH but that Tony Band had, at the time of the hearing, no interests of any kind; therefore the ‘best interests’ which justified the giving of ANH had ceased; hence the ANH should be withdrawn. This argument would not have been available to Lord Mustill had Tony Bland been near-PVS (as was the Ward).

[xvii] Appendix C - number 10.

[xviii] Conclusion _{7 - 6} : ‘Best interests’ judgements necessitate ‘quality of life’ judgements.

Conclusion _{7 - 7} : The ‘best interests’ analysis adopted in both the Ward and Bland cases necessitates the use of ‘absolute quality of life’ judgements.

[xix] The Bland case also has importance in that it was the only case concerning the withdrawal of life-sustaining treatment to be decided by the House of Lords (which is the highest court in England) as such it has a special authority.

[xx] The requirements are set out in the Bland case (Appendix C - number 2) and also in a Practice Direction of March 1994. cf. Current Law Year Book (1994) at p.1028.

In Scotland, however, prior application to the court is not required; BMA (1996) states (at p.59):

“In Scotland, the Law Hospital case of 1996 (Law Hospital v The Lord Advocate and Others April 1996) laid down a procedure whereby authority can be obtained from the Court of Session for the withdrawal of life-sustaining treatment from patients who are diagnosed as having been in PVS for at least 12 months. ... It was made clear in the Law Hospital case that, in contrast to Bland, the court does not require each future PVS case to come before it before treatment is withdrawn.”

[xxi] This table is abstracted from Table C-2, Appendix C. Numbers in Column 4 relate to numbering in Appendix C.

[xxii] The Bland case had been decided by the House of Lords which is superior to, and whose decision binds, the courts which decided Frenchay v S and Re D.

[xxiii] 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’

[xxiv] Appendix C - number 11.

[xxv] The application to withdrawal of ANH from a patient being fed by syringe and able to swallow appears to be in breach BMA policy:

“The guidance is very specific in its advice that oral nutrition and hydration (food and fluids) should continue to be offered to all patients who are able to swallow. This is part of basic care and should never be withheld or withdrawn.”

BMA (1999c) Policy report on the Medical Treatment (Prevention of Euthanasia) Bill. [emphasis in original]

[xxvi] The judgement contemplated such a fresh application.

[xxvii] Grubb et al (1996a) at p.39; this observation was mentioned earlier in Chapter 6, Section 4.

More recent information is given in BMA (1999a) Withholding and Withdrawing Life-prolonging Medical Treatment : Guidance for decision making. 3C.18.1:

“In each case of patients in persistent vegetative state (pvs) that the law has considered, it has decided that it would not be unlawful to withdraw artificial nutrition and hydration, on the basis that its provision was not in the best interests of the individual patient (by the end of 1998, 18 such cases had been considered by the Courts).”

[xxviii] This table is abstracted from Table C-2, Appendix C. Numbers in column 4 relate to numbering of cases in Appendix C.

[xxix] See Chapter 7, Section 2 where the BMA’s overly wide interpretation of the decision was noted.

[xxx] per Taylor L.J. in Re J at p.945.

In the Bland case Lord Goff distinguished the circumstance of Re J from those of Tony Bland in that Tony Bland was totally unconscious and not in pain thus precluding any weighing operation; had Tony Bland been ‘near- PVS’ then no such distinction would have been possible.

[xxxi] Appendix C - number 10.

[xxxii] The Ward case has been the only Irish case to deal with the withdrawal of life-sustaining treatment. This is presumably because of the absence in Irish law (unlike in English law) of a requirement to apply to the courts for prior permission to withdraw ANH.

[xxxiii] Appendix C - number 7.

[xxxiv] The Ward case at p.449.

[xxxv] As has been already noted in the Introduction to Part 2.

[xxxvi] ibid. p.423.

[xxxvii] ibid. p.432.

[xxxviii] ‘Obiter dicta’ contrast with the ‘ratio decidendi’ of a case (which describe the kernel of the judgement) and which is binding on lower courts. These distinction were discussed in the Introduction to Part 2.

[xxxix] Frenchay v S at p.409.

[xl] The Ward case p.432.

“Thus, the circumstances of the current case are clearly distinguishable from the position as regards, for example, a seriously mentally handicapped person. A mentally handicapped person is conscious of his or her situation and is capable of obtaining pleasure and enjoyment from life.”

[xli] “... this is not a case of no cognitive function.” per Egan J., the Ward case at p.437.

[xlii] An incompetent patient is one who is unable, for reason of incapacity or otherwise, to consent.

[xliii] The patient in the Ward case was not PVS but ‘near-PVS’ in that she had some level of consciousness.

[xliv] The Ward case at p.8.

[xlv] The Ward case p.437.

[xlvi] The Bland case; Lord Browne-Wilkinson (at p.885):

“I must again emphasis that this is an extreme case where it can be overwhelmingly proved that the patient is and will remain insensate ... Unless ... Parliament reviews the law, the courts will be faced with cases where the chances of improvement are slight, or the patient has very slight sensate awareness ... my decision does not cover such a case.”

Lord Mustill (at p.899):

“This is not at all to say that I would reach the same conclusion in less extreme cases, where the glimmerings of awareness may give the patient an interest which cannot be regarded as null. ... Every step forward requires the greatest caution.”

[xlvii] There was unanimity in the view that future cases of withdrawal of ANH concerning PVS patients be brought before the courts for scrutiny:

" ... the President held that in cases of this kind application should be made to the court to obtain its sanction for the course proposed. This was in my respectful view a wise ruling, directed to the protection of patients, the protection of doctors, the reassurance of patient's families and the reassurance of the public."

[The Bland case: Sir Thomas Bingham MR. at p.815.]

[xlviii] To say, as did Hamilton CJ., that the judgement relates only to the particular facts and yet not to insist that all similar cases come before the courts is surprising; the clarity of the Bland case in its insistence that its decision applied only to insensate cases was lost and nothing put in its place.

See also 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.

[xlix] Appendix C - number 11.

[l] BMA (1998, p.13) in discussing re R.

[li] See BMA (1999a)3D.20.:

“Although the BMA welcomes the categorisation of artificial nutrition and hydration as a form of medical treatment, it accepts that many people perceive there to be an important distinction between this and other treatments. In recognition of this fact and in order to reassure patients, their families and society as a whole that decisions to withhold or withdraw artificial nutrition and hydration are taken only in the most extreme cases, where its provision would not provide a net benefit to the patient, it is recommended that additional procedural safeguards should be followed.”

BMA (1999b):

“The classification of artificial nutrition and hydration as medical treatment is now established common law but the BMA recognises that this definition is not universally accepted.”

BMA (1999a)1.3.4:

“Whilst classifying artificial nutrition and hydration as treatment, the House of Lords conceded that its withdrawal was a particularly sensitive matter. For the protection of patients and doctors and for the reassurance of the patients’ families and the public, it was decided that additional safeguards should be put in place.”

[lii] Hamilton CJ. stated (at p.429):

“The true cause of the Ward’s death will not be the withdrawal of such nourishment but the injuries which she sustained ... in 1972.”

Denham J. stated (at p.462):

“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.”

[liii] Lynch J., in his judgement set out, and approved, the current medical practice in relation to disputes between family and carers concerning the withdrawal of treatment from incompetent patients. The options are summarised in Table C-3

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

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

Unlike the situation that pertains in England; the court laid down no general obligation to apply to the court in cases of treatment withdrawal. This is of importance because the court has thus ensured that it is unable to monitor the development of medical practice in relation to treatment withdrawal. It could be suggested that it abdicated its legal responsibility in favour of the medical profession; Lord Hoffman’s words (The Bland case p.834) are apposite:

“I would expect medical ethics to be formed by the law rather than the reverse.”

Doubtlessly in cases - such as that envision in line 5 - an aggrieved family could apply to the courts for a review of any proposed medical decision; nonetheless the court does not have an ongoing supervisory role except in such cases.

The cases envisaged in line 5 are much more problematic. These relate to cases where both family and carers are in agreement that treatment should be withdrawn. In such cases in the opinion of Lynch J. court application is not required.

The English situation appears to differ from the Irish in that according to the BMA [BMA (1999b)] the decision to withdrawal of life-sustaining treatment rests wholly with the medical carers:

“There is a widely held misperception that the next of kin may give, or withhold consent on behalf of an adult patient who lacks the capacity to make or communicate decisions. In fact, no such legal power is given to the next of kin.”

[liv] i.e. the patient’s family and medical carers.

[lv] The Ward case p.452.

[lvi] As discussed in the previous Section and in Appendix C - number 11.

[lvii] Appendix C - number 7.

[lviii] Discussed in Chapter 4, Section 3.

[lix] Tresch op.cit. p.932:

“This large number of patients in a PVS in our study who were diagnosed as having end-stage dementia is surprising. Patients with dementia rarely develop the profound and complete loss of awareness characteristic of PVS, and it is important to distinguish between PVS and the usual dementia state.”

[lx] Childs p.1465.