Report No. 196
Lord Lowry agreed with Lord Goff.
Lord Browne-Wilkinson's opinion is equally important. We shall only refer to certain important aspects.
Lord Browne-Wilkinson stated that till recently, death was beyond human control but recent developments in medical science have fundamentally affected those previous uncertainties. "In medicine, the cessation of breathing of heartbeat is no longer death. By the use of a ventilator, lungs which in the unaided course of nature would have stopped breathing, can be made to breathe, thereby sustaining heartbeat......... This has led medical profession to redefine death in terms of brain-stem death." In medical terms, an unconscious patient kept alive by use of a ventilator is called 'a ventilated corpse'. He also poses the question, arising out of modern technology:
"Given that there are limited resources available for medical care, is it right to devote money to sustaining the lives of those who are, and always will be, unaware of their own existence rather than to treating those who, in a real sense, can be benefited e.g. those deprived of dialysis for want of resources."
New problems have also arisen in computing damages in accident cases on the basis whether the person is alive or dead. Question of succession depends upon the timing of death.
Omission to do certain thing may constitute offence "where the accused was under a duty to the deceased to do the act which he omitted to do". Counsel Mr. Munby contended that 'removal of the nasogastric tube necessary to provide artificial feeding and the discontinuance of the existing regime of artificial feeding', constitute 'positive acts of commission'. Lord Browne Wilkinson said: (p 881)
"I do not accept this. 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.
The positive act of removing the nasogastric tube presents more difficulty. It is undoubtedly a positive act, similar to switching off a ventilator in the case of a patient whose life is being sustained by artificial ventilation. But, in my judgment, in neither case should the act be classified as positive, since to do so would be to introduce intolerably fine distinctions.
If, instead of removing the nasogastric 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. Again, as has been pointed out (Skegg, 'Law, Ethics and Medicine' (1984) p. 169 et seq), if the 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."