Report No. 196
Principles of Law Laid Down by The House of Lords in Airedale NHS Trust v. Bland:
We have already referred in Chapter II to the principles laid down by the House of Lords in Airedale case (1993)(1)All ER 821 (HL) which makes a distinction between withdrawal of life support on the one hand, and Euthanasia and Assisted suicide on the other. That distinction has been accepted by our Supreme Court in Gian Kaur's case 1996(2) SCC 648.
In this Chapter, we shall refer in detail to the facts in Airedale and to the views expressed by the Law Lords, and in particular by Lord Keith, Lord Goff of Chieveley and Lord Browne Wilkinson. We shall than refer to large number of cases decided in UK on the basis of the principles laid down in Airedale.
We shall start with the leading decision Airedale NHS Trust v. Bland.
Airedale NHS Trust v. Bland: 1993(1) All ER 821: (This was an appeal by the Official Solicitor, representing Mr. Bland).
Mr. Anthony Bland met with an accident and for three years, he was in a condition known as 'persistent vegetative state' (PVS). The said condition was the result of destruction of the cerebral cortex on account of prolonged deprivation of oxygen and the cortex had resolved into a watery mass. The cortex is that part of the brain which is the seat of cognitive function and sensory capacity. The patient cannot see, hear or feel anything. He cannot communicate in any way. Consciousness has departed for ever. But the brain-stem, which controls the reflective functions of the body, in particular the heart beat, breathing and digestion, continues to operate.
In the eyes of the medical world and of the law, a person is not clinically dead so long as the brain-stem retains its function.
In order to maintain Mr. Bland in his present condition, feeding and hydration are achieved by artificial means of a nasogastric tube while the excretory functions are regulated by a catheter and other artificial means. The Catheter is used from time to time to give rise to infusions which have to be dealt with by appropriate medical treatment.
As for Bland, according to eminent medical opinion, there was no prospect whatsoever that he would ever make a recovery from his present condition but there was every likelihood that he would maintain the present state of existence for many years to come provided the artificial means of medical care is continued.
The doctors and the parents of Bland felt, after three years, that no useful purpose would be served by continuing the artificial medical care and that it would be appropriate to stop these measures aimed at prolonging his existence.
Since there were doubts whether withdrawal of life support measures could amount to a criminal offence, the Hospital Authority (the appellant) moved the High Court for a declaration designed to resolve these doubts. The Family Division of the High Court granted the declarations sought for on 19.11.92. That judgment was affirmed by the Court of Appeal (Sir Thomas Bingham M.R., Butler-Sloss and Hoffman L.JJ) on 9.12.1992. The declarations granted by the Court were as follows:
"that despite the inability of the defendant to consent thereto, the plaintiff and the responsible attending physicians:
(1) may lawfully discontinue all life-sustaining treatment and medical supportive measures designed to keep the defendant alive in his existing persistent vegetative state including the termination of ventilation, nutrition and hydration by artificial means; and
(2) may lawfully discontinue and thereafter need not furnish medical treatment to the defendant except for the sole purpose of enabling him to end his life and die peacefully with the greatest dignity and the least of pain suffering and distress."
On further appeal to the House of Lords, Lord Keith of Kinkel observed that the object of medical treatment and care is, after all, to benefit the patient. But it is unlawful, both under the law of torts and criminal law of battery, to administer medical treatment to an adult, who is conscious and of sound mind, without his consent (In re F. Mental Patient: Sterlisation) 1990 (2) AC 1. Such a person is completely at liberty to decline to undergo treatment, even if the result of his doing will be that he will die.
This extends to the situation where the person, in anticipation of his death through one cause or another and entering into a condition such as P.V.S., gives clear instructions that in such event, he is not to be given medical care, including artificial feeding, designed to keep him alive. The second point is that it very commonly occurs that a person due to accident or some other cause, becomes unconscious and is thus not able to give or withhold consent to medical treatment.
In that situation, it is lawful, under the principle of necessity, for medical men to apply such treatment as in their informed opinion is in the "best interests" of the unconscious patient. In In re J (A Minor) (Wardship: Medical Treatment)(1991) Fam. 33, the Court of Appeal held it to be lawful to withhold life saving treatment from a very young child in circumstances where the child's life, if saved, would be one irredeemably racked by pain and agony.
In the case of a permanently insensate being, who if continuing to live would never experience the slightest actual discomfort, it is difficult, if not possible, to make any relevant comparison between continued existence and the absence of it. It is, however, perhaps permissible to say that to an individual with no cognitive capacity whatever, and no prospect of ever recovering any such capacity in this world, it would be a matter of complete indifference whether he lives or not. Lord Keith observed:
"a medical practitioner is under no duty to continue to treat such a patient where a large body of informed and responsible medical opinion is to the effect that no benefit at all would be conferred by continuance. Existence in a vegetative state with no prospect of recovery is by that opinion regarded as not being a benefit, and that, if not unarguably correct, at least forms a proper basis for the decision to discontinue treatment and care: (Bolam vs. Freirn Hospital Management Committee 1957(1) WLR 582).