Report No. 196

Significantly, Lord Goff further explains what happens in a withdrawal of life support. He says:

"I agree that the doctor's conduct in discontinuing life support can properly be categorized as an omission. It is true that it may be difficult to describe what the doctor actually does as an omission, for example, where he takes some positive step to bring the life support to an end. But discontinuation of life support is, for present purposes, no different from not initiating life support, in the first place.

In each case, the doctor is allowing his patient to die in the sense that he is desisting from taking a step which might, in certain circumstances, prevent his patient from dying as a result of his pre-existing condition; but as a matter of general principle, an omission such as this will not be unlawful unless it constitutes a breach of duty to the patient. I also agree that the doctor's conduct is to be differentiated from that of, for example, an interloper who maliciously switches off a life support machine.

Accordingly, whereas the doctor in discontinuing life support, is simply allowing his patient to die of his pre-existing condition, the interloper is actively intervening to stop the doctor from prolonging the patient's life, and such conduct cannot possibly be categorised as an omission.

discontinuance of life support can be differentiated from ending a patient's life by a lethal injection. the reason for that difference is that, whereas the law considers that discontinuance of life-support may be consistent with the doctor's duty to care for his patient, it does not, for reasons of policy, consider that it forms part of his duty to give his patient a lethal injection to put him out of his agony."

After referring to In re F (Mental Patient: Sterilisation) 1990(2) AC 1, in which it was held that a doctor may, when treating an unconscious patient, treat such a patient if he acts in his "best interests.- Lord Goff said, the same principle applies when a doctor decides whether or not to stop the life support in the best interests of the patient. A doctor, for example, is not, as held by Thomas J in Auckland Area Health Authority v. AG:1993(1) NZLR 235 bound to perform a surgery on a cancer patient if it is likely to result in shortening the patient's life further. He may then lawfully administer palliatives to reduce the pain and suffering. He said that, therefore-

"when the doctor's treatment of his patient is lawful, the patient's death will be regarded in law as exclusively caused by the injury or disease to which his condition is attributed."

Life support systems are new innovations in Medical technology. Life support methods can be initially adopted, "But if he neither recovers sufficiently to be taken off it nor dies, the question will ultimately arise whether he should be kept on it indefinitely." After quoting Prof. Ian Kennedy and from Thomas J of New Zealand, Lord Goff said that the question is not whether the doctor should take a course which will kill the patient, the question is "whether in the best interests of the patient that his life should be prolonged by the continuance of this form of medical treatment or care. In the present case the continuance is, according to doctor, of no utility at all as it has no therapeutic purpose of any kind".

Rejecting the American Court's view that a surrogate or substitute could be allowed to take a decision on behalf of an incompetent patient, (see In re Quinian: (1976) 355 A. 2d. 647 and Superintendent of Belchertown State School v. Saikewicz 370 N.E. 2d 417, Lord Goff said:

"I do not consider that any such test forms part of English law in relation to incompetent adults, on whose behalf nobody has power to give consent to medical treatment. Certainly, in In re F 1990(2) AC 1, your Lordship's House adopted a straightforward test based on the best interests of the patient;."

Lord Goff finally approved Lord Bingham MR's view that Courts could grant declarations for stoppage of life support, in the interests of patients, doctors and patients' families and in the context of re-assurance to the public.