Airedale NHS Trust v Bland

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeTHE MASTER OF THE ROLLS,LORD JUSTICE BUTLER-SLOSS,LORD JUSTICE HOFFMANN
Judgment Date09 December 1992
Judgment citation (vLex)[1992] EWCA Civ J1209-2
Date09 December 1992
Docket Number92/1171

[1992] EWCA Civ J1209-2

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

FAMILY DIVISION

(THE PRESIDENT)

Royal Courts of Justice

Before:

The Master of the Rolls

(Sir Thomas Bingham)

Lord Justice Butler-Sloss

Lord Justice Hoffmann

92/1171

Airedale NHS Trust
Respondent
and
Anthony Bland (By his guardian ad litem the Official Solicitor of the Supreme Court)
Appellant

MR JAMES MUNBY Q.C. (instructed by the Official Solicitor) appeared for the Appellant.

MR ROBERT FRANCIS Q.C. and MR MICHAEL TAYLOR (instructed by Messrs Penningtons) appeared for the Respondent.

MR ANTHONY LESTER Q.C. and MR PUSHPINDER SAINI (instructed by the Treasury Solicitor) appeared as Amicus Curiae.

THE MASTER OF THE ROLLS
1

Mr Anthony David Bland, then aged 17 and a half, went to the Hillsborough ground on 15th April 1989 to support the Liverpool Football Club. In the course of the disaster which occurred on that day, his lungs were crushed and punctured and the supply of oxygen to his brain was interrupted. As a result, he suffered catastrophic and irreversible damage to the higher centres of the brain. The condition from which he suffers, and has suffered since April 1989, is known as a persistent vegetative state (abbreviated to PVS).

2

PVS is a recognised medical condition quite distinct from other conditions sometimes known as "irreversible coma", "the Guillain-Barre syndrome", "the locked-in syndrome" and "brain death". Its distinguishing characteristics are that the brain stem remains alive and functioning while the cortex of the brain loses its function and activity. Thus the PVS patient continues to breathe unaided and his digestion continues to function. But although his eyes are open, he cannot see. He cannot hear. Although capable of reflex movement, particularly in response to painful stimuli, the patient is incapable of voluntary movement and can feel no pain. He cannot taste or smell. He cannot speak or communicate in any way. He has no cognitive function and can thus feel no emotion, whether pleasure or distress. The absence of cerebral function is not a matter of surmise; it can be scientifically demonstrated. The space which the brain should occupy is full of watery fluid.

3

The medical witnesses in this case include some of the outstanding authorities in the country on this condition. All are agreed on the diagnosis. All are agreed on the prognosis also: there is no hope of any improvement or recovery. One witness of great experience described Mr Bland as the worst PVS case he had ever seen.

4

Mr Bland lies in bed in the Airedale General Hospital, his eyes open, his mind vacant, his limbs crooked and taut. He cannot swallow, and so cannot be spoon-fed without a high risk that food will be inhaled into the lung. He is fed by means of a tube, threaded through the nose and down into the stomach, through which liquefied food is mechanically pumped. His bowels are evacuated by enema. His bladder is drained by catheter. He has been subject to repeated bouts of infection affecting his urinary tract and chest, which have been treated with antibiotics. Drugs have also been administered to reduce salivation, to reduce muscle tone and severe sweating and to encourage gastric emptying. A tracheostomy tube has been inserted and removed. Urino-genitary problems have required surgical intervention.

5

A patient in this condition requires very skilled nursing and close medical attention if he is to survive. The Airedale National Health Service Trust have, it is agreed, provided both to Mr Bland. Introduction of the nasogastric tube is itself a task of some delicacy even in an insensate patient. Thereafter it must be monitored to ensure it has not become dislodged and to control inflammation, irritation and infection to which it may give rise. The catheter must be monitored: it may cause infection (and has repeatedly done so); it has had to be re-sited, in an operation performed without anaesthetic. The mouth and other parts of the body must be constantly tended. The patient must be repeatedly moved to avoid pressure sores. Without skilled nursing and close medical attention a PVS patient will quickly succumb to infection. With such care, a young and otherwise healthy patient may live for many years.

6

At no time before the disaster did Mr Bland give any indication of his wishes should he find himself in such a condition. It is not a topic most adolescents address. After careful thought his family agreed that the feeding tubes should be removed and felt that this was what Mr Bland would have wanted. His father said of his son in evidence: "He certainly wouldn't want to be left like that". He could see no advantage at all in continuation of the current treatment. He was not cross-examined. It was accordingly with the concurrence of Mr Bland's family, as well as the consultant in charge of his case and the support of two independent doctors, that the Airedale NHS Trust as plaintiff in this action applied to the Family Division of the High Court for declarations that they might

"(1)…lawfully discontinue all life-sustaining treatment and medical support measures designed to keep AB [Mr Bland] alive in his existing persistent vegetative state including the termination of ventilation nutrition and hydration by artificial means; and

(2)…lawfully discontinue and thereafter need not furnish medical treatment to AB except for the sole purpose of enabling AB to end his life and die peacefully with the greatest dignity and the least of pain suffering and distress."

7

After a hearing in which he was assisted by an amicus curiae instructed by the Attorney-General, the President of the Family Division made these declarations (subject to a minor change of wording) on 19th November 1992. He declined to make further declarations which were also sought. The Official Solicitor on behalf of Mr Bland appeals against that decision: in doing so he fulfils his traditional role as the voice of those who, for reasons of incapacity, cannot speak for themselves, ensuring that their interests do not go by default because of their involuntary silence.

8

The present appeal raises moral, legal and ethical questions of a profound and fundamental nature, questions literally of life and death. The case has naturally provoked much public discussion and great anxiety. Strong and sincerely held opinions have been expressed both in favour of the decision under appeal and against it. The issues are such as inevitably to provoke divisions of opinion. But they are fairly and squarely before the court, which has had the benefit of eloquent and erudite argument. It cannot shirk its duty to decide. It is, however, important to be clear from the outset what the case is, and is not, about. It is not about euthanasia, if by that is meant the taking of positive action to cause death. It is not about putting down the old and infirm, the mentally defective or the physically imperfect. It has nothing to do with the eugenic practices associated with fascist Germany. The issue is whether artificial feeding and antibiotic drugs may lawfully be withheld from an insensate patient with no hope of recovery when it is known that if that is done the patient will shortly thereafter die.

9

There are certain important principles relevant to this issue which both parties accept:

(1) A profound respect for the sanctity of human life is embedded in our law and our moral philosophy, as it is in that of most civilised societies in the East and the West. That is why murder (next only to treason) has always been treated here as the most grave and heinous of crimes.

(2) It is a civil wrong, and may be a crime, to impose medical treatment on a conscious adult of sound mind without his or her consent: In re F (Mental Patient: Sterilisation) [1990] 2 A.C. 1.

(3) A medical practitioner must comply with clear instructions given by an adult of sound mind as to the treatment to be given or not given in certain circumstances, whether those instructions are rational or irrational: Sidaway v. Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] A.C. 871 at 904–5; In re T (Adult: Refusal of Treatment) [1992] 3 WLR 782. This principle applies even if, by the time the specified circumstances obtain, the patient is unconscious or no longer of sound mind.

(4) Where an adult patient is mentally incapable of giving his consent, no one (including the court) can give consent on his behalf. Treatment in such a case may lawfully be provided by a doctor where the treatment is in the best interests of the patient: Re F, above.

(5) Where the patient is a child and a ward of court, it will itself decide (paying appropriate regard to professional medical opinion) whether medical treatment is in the best interests of the patient: In re B (A Minor) (Wardship: Medical Treatment) [1981] 1 WLR 1421; In re B (A Minor) (Wardship: Sterilisation) [1988] A.C. 199; In re C (A Minor) (Wardship: Medical Treatment) [1990] Fam. 26; In re J (A Minor) (Wardship: Medical Treatment) [1991] Fam. 33.

10

It follows from these propositions that, if, presciently, Mr Bland had given instructions that he should not be artificially fed or treated with antibiotics if he should become a PVS patient, his doctors would not act unlawfully in complying with those instructions but would act unlawfully if they did not comply, even though the patient's death would inevitably follow. If Mr Bland were a child and a ward of the court, it would decide what was in his best interests, having regard to the views of his parents but not treating them as conclusive: Re B [1981] 1 WLR 1421. If the ratio of Re J above is sound, an issue expressly reserved by Mr Munby...

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