Airedale NHS Trust v Bland

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLord Keith of Kinkel,Lord Goff of Chieveley,Lord Lowry,Lord Browne-Wilkinson,Lord Mustill
Judgment Date04 Feb 1993
Judgment citation (vLex)[1993] UKHL J0204-1

[1993] UKHL J0204-1

House of Lords

Lord Keith of Kinkel

Lord Goff of Chieveley

Lord Lowry

Lord Browne-Wilkinson

Lord Mustill

Airedale NHS Trust
(Respondents)
and
Bland (Acting by His Guardian ad Litem)
(Appellant)
Lord Keith of Kinkel

My Lords,

1

As a result of injuries sustained in the Hillsborough disaster, Anthony Bland has for over three years been in the condition known as persistent vegetative state (P.V.S.). It is unnecessary to go into all the details about the manifestations of this state which are fully set out in the judgments of the courts below. It is sufficient to say that it arises from the destruction, through prolonged deprivation of oxygen, of the cerebral cortex, which has resolved into a watery mass. The cortex is that part of the brain which is the seat of cognitive function and sensory capacity. Anthony Bland cannot see, hear or feel anything. He cannot communicate in any way. The consciousness which is the essential feature of individual personality has departed for ever. On the other hand the brain stem, which controls the reflexive functions of the body, in particular heartbeat, 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 Anthony Bland in his present condition, feeding and hydration are achieved artificially by means of a nasogastric tube and excretionary functions are regulated by a catheter and by enemas. The catheter from time to time gives rise to infections which have to be dealt with by appropriate medical treatment. The undisputed consensus of eminent medical opinion is that there is no prospect whatever that Anthony Bland will ever make any recovery from his present condition, but that there is every likelihood that he will maintain his present state of existence for many years to come, provided that the medical care which he is now receiving is continued.

2

In that state of affairs the medical men in charge of Anthony Bland's case formed the view, which was supported by his parents, that no useful purpose was to be served by continuing that medical care and that it was appropriate to stop the artificial feeding and other measures aimed at prolonging his existence. Since, however, there were doubts as to whether this course might not constitute a criminal offence, the responsible hospital authority, the Airedale N.H.S. Trust, sought in the High Court of Justice declarations designed to resolve these doubts. In the result, declarations on the lines asked for were granted by judgment of the President of the Family Division on 19 November 1992. That judgment was affirmed by the Court of Appeal (Sir Thomas Bingham M.R., Butler-Sloss and Hoffman L.JJ.) on 9 December 1992. The declarations are in these terms:

"that despite the inability of the defendant to consent thereto the plaintiff and the responsible attending physicians:�

  • (a) 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

  • (b) 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;"

3

Anthony Bland, by the Official Solicitor as his guardian ad litem, now appeals, with leave given in the Court of Appeal, to your Lordships' House. At the hearing of the appeal your Lordships were assisted by submissions made by Mr. Anthony Lester Q.C., as amicus curiae instructed by the Treasury Solicitor.

4

The broad issue raised by the appeal is stated by the parties to be "In what circumstances, if ever, can those having a duty to feed an invalid lawfully stop doing so?" The immediate issue, however, is whether in the particular circumstances of Anthony Bland's case those in charge of it would be acting lawfully if they discontinued the particular measures, including feeding by nasogastric tube, which are now being used to maintain Anthony Bland in his existing condition.

5

The first point to make is that it is unlawful, so as to constitute both a tort and the crime of battery, to administer medical treatment to an adult, who is conscious and of sound mind, without his consent: In In re F. (Mental Patient: Sterilisation) [1990] 2 A.C. 1. Such a person is completely at liberty to decline to undergo treatment, even if the result of his doing so will be that he will die. This extends to the situation where the person, in anticipation of his, through one cause or another, 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. That is what happened in the case of Anthony Bland when he was first dealt with by the emergency services and later taken to hospital.

6

The object of medical treatment and care is to benefit the patient. It may do so by taking steps to prevent the occurrence of illness, or, if an illness does occur, by taking steps towards curing it. Where an illness or the effects of an injury cannot be cured, then efforts are directed towards preventing deterioration or relieving pain and suffering. In Anthony Bland's case the first imperative was to prevent him from dying, as he would certainly have done in the absence of the steps that were taken. If he had died, there can be no doubt that the cause of this would have been the injuries which he had suffered. As it was, the steps taken prevented him from dying, and there was instituted the course of treatment and care which still continues. For a time, no doubt, there was some hope that he might recover sufficiently for him to be able to live a life that had some meaning. Some patients who have suffered damage to the cerebral cortex have, indeed, made a complete recovery. It all depends on the degree of damage. But sound medical opinion takes the view that if a P.V.S. patient shows no signs of recovery after six months, or at most a year, then there is no prospect whatever of any recovery. There are techniques available which make it possible to ascertain the state of the cerebral cortex, and in Anthony Bland's case these indicate that, as mentioned above, it has degenerated into a mass of watery fluid. The fundamental question then comes to be whether continuance of the present regime of treatment and care, more than three years after the injuries that resulted in the P.V.S., would confer any benefit on Anthony Bland. It is argued for the respondents, supported by the amicus curiae, that his best interests favour discontinuance. I feel some doubt about this way of putting the matter. In In re. F. (Mental Patient: Sterilisation) [1990] 2 A.C. 1 this House held that it would be lawful to sterilise a female mental patient who was incapable of giving consent to the procedure. The ground of the decision was that sterilisation would be in the patient's best interests because her life would be fuller and more agreeable if she were sterilised than if she were not. 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 both cases it was possible to make a value judgment as to the consequences to a sensate being of in the one case withholding and in the other case administering the treatment in question. 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 impossible, 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 must be a matter of complete indifference whether he lives or dies.

7

Where one individual has assumed responsibility for the care of another who cannot look after himself or herself, whether as a medical practitioner or otherwise, that responsibility cannot lawfully be shed unless arrangements are made for the responsibility to be taken over by someone else. Thus a person having charge of a baby who fails to feed it, so that it dies, will be guilty at least of manslaughter. The same is true of one having charge of an adult who is frail and cannot look after herself: Reg. v. Stone [1977] Q.B. 354. It was argued for the guardian ad litem, by analogy with that case, that here the doctors in charge of Anthony Bland had a continuing duty to feed him by means of the nasogastric tube and that if they failed to carry out that duty they were guilty of manslaughter, if not murder. This was coupled with the argument that feeding by means of the nasogastric tube was not medical treatment at all, but simply feeding indistinguishable from feeding by normal means. As regards this latter argument, I am of opinion that regard should be had to the whole regime, including the artificial feeding, which at present keeps Anthony Bland alive. That regime amounts to medical treatment and care, and it is incorrect to direct attention exclusively to the fact that nourishment is...

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