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Report No. 196

In Airedale case, the declarations granted by the Court of Appeal, which were affirmed by the House of Lords, were as follows:

"that despite the inability of (the defendant) to consent thereto, the plaintiff and the responsible physicians:

(1) may lawfully discontinue all life-sustaining treatment and medical support measures designed to keep (the defendant) alive on 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"

In Law Hospital NHS Trust v. Lord Advocate (Scotland) 1996 SLT 848, Lord Hope, the Lord President stated that in Airedale, the House of Lords observed that the Courts give a declaration that a doctor's action would be declared as lawful. The medical profession was entitled to look to the Courts (see Scottish Law Commission Report on Incapable Adults (No.151, para 5.86). Such a declaration could be brought as per the Practice Note of March 1994 by the Official Solicitor (1994 (2) All ER 413).

But Lord Hope went into the question whether such a declaration would be binding on the criminal or civil Courts, when the issue arose before them later. The declaration, of course, was not one asking particular act to be declared as not being a criminal act. "What it seeks is a declaration that the pursuers and the medical practitioner 'may lawfully discontinue' the treatment". In Airedale, in the Family Division, Sir Stephen Browne stated (see p.833 of All ER) that he did not think it appropriate to grant a declaration that the action was not criminal. 'Lawful' meant lawful according to civil law.

Lord Hope also referred to the observation of Lord Goff of Chievely and Lord Mustill in the House of Lords in Airedale who expressed strong reservations about granting a declaration as to criminality in a civil case. Lord Mustill pointed out that the decision, in any event, would not create an estoppel in the criminal courts which would form a conclusive bar of prosecution. Nevertheless, they did proceed to decide the issue and "it is clear from all the speeches that their Lordships were of the view that the conduct which was proposed would not amount to crime according to the law of England".

Having said this, Lord Hope doubted if any declaration that might be granted would preclude the criminal Court from going into the question. He held that the Court could not give a declaration that the act was or was not of a criminal nature. The declaration may be useful in another civil case but not in a criminal case.

He declared that any declaration which the Court of Sessions, Inner House may make in this matter about the lawfulness of the action would not be binding on the High Court of Justiciary. (In Scotland, the Civil Jurisdiction is with the Court of Sessions, Inner House, while the criminal jurisdiction is with the High Court of Justiciary). Declaration about lawfulness of the action could be given by the Court of Sessions for purposes of civil liability.

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

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