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Report No. 196

In Airedale, the House of Lords clearly declared by affirming the decision of the Court of Appeal 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 with the greatest dignity and the least pain, suffering and distress"

As to suicide and abetment of suicide, in such cases of lawful termination of medical treatment, Lord Goff said: "I wish to add that, in cases of this kind, there is no question of the patient having committed suicide nor, therefore, of the doctor having aided or abetted him to do so". Lord Goff said in Airedale that the 'omission is not a breach of duty by the doctor, because he is not obliged to continue in a hopeless case' (quoting Prof. Glanville Williams, Criminal Law, 2 nd Ed (1983) (p.282).

An omission will not be unlawful unless there is a breach of duty towards the patient. If there is no such duty in respect of a patient who is in dying state with no chances of recovery and, where nature is allowed to take its course, it is lawful to discontinue the treatment. It is lawful to allow a patient in a dying state to die a natural death because the competent patients want it or in the case of the incompetent patient (and the competent patient whose decision is not informed), it is in the patient's best interests.

Lord Browne-Wilkinson pointed out (p. 881) that 'apart from the act of removing the nasogastric tube, the mere failure to continue to do what you have previously done, is not, in any ordinary sense, to do anything positive; on the contrary, it is by definition an omission to do what you have previously done.... If, instead of removing the nasogasric 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".

He refers to Skegg, 'Law, Ethics and Medicine' (1984) (p 169) to state (see p 881) that 'If switching off 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 re-set every 12 hours; the failure to reset the machine could not be classified as a positive act'. He also said that the 'doctor cannot owe to the patient any duty to maintain life where that life can only be sustained by intrusive medical care to which the patient will not consent or in the case of an incompetent patient,

"if there comes a stage where the responsible doctor comes to the reasonable conclusion (which accords with the views of a responsible body of medical opinion (Bolam Test), that further continuance of an intensive life support system is not in the 'best interests' of the patient, he can no longer lawfully continue that life support system; to do so would constitute the crime of battery and the tort of trespass to the person".

Thus, while withholding or withdrawing life support do not amount attempt to commit suicide or abetment to suicide, continuing treatment contrary to patient's wishes or where it serves no purpose and is not in the best interests of the patient, can amount to the offence of battery or the tort of trespass to the person.



Medical Treatment to Terminally Ill Patients (Protection of Patients and Medical Practitioners) Back




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