Airedale NHS Trust v Bland

Samuel T. Cogley

Airedale NHS Trust v Bland – Lord Goff:

…[D]iscontinuation of life support is, for the present purposes, no different from not initiating life support in the first place. In each case the Doctor is simply allowing his patient to die in the sense that he is desisting from take a step which might, in certain circumstances, prevent his patient from dying as a result of his pre-existing condition; and 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. …[T]he doctor’s conduct is to be differentiated from that of … an interloper who maliciously switched off a life support machine, because although the interloper may perform exactly the same act … his doing so constitutes an interference with the life-prolonging treatment … .[T]he interloper is actively intervening to stop the doctor from prolonging the patient’s life, and such conduct cannot possibly be categorised as an omission.

In Re Ward of Court the act / omission dichotomy was of minimal importance in the decision which was reached by analysis of constitutional rights, however it followed Bland in regard to PVS, the classification of feeding being used. Therefore it is likely that if such an issue arises in Ireland Bland will be given heavy weight.

Extract from my notes.

The logic employed by Lord Goff seems a bit questionable in my view. Surely a doctor has a duty to do no harm and the removal of a feeding tube is by very definition an act, he even says so himself, yet a white coat seems to magically transform it into an omission.

Anyone want to discuss? Just sounding it out really. Any more recent decisions in Ireland than 1995 - Re Ward of Court?

This is in relation to criminal law study rather than the right to die but all input welcome.

osarusan

Is 'maliciously' not the key word there - in that it suggests that the situation is not one in which doctors and family are agreed that continuing life-prolonging treatment is not in the patient's best interests.

Or are you wondering if it would be a crime for an 'interloper' to be the one to withdraw a feeding tube in a situation where everybody had already agreed to withdraw the tube?

Samuel T. Cogley

osarusan wrote: »

Is 'maliciously' not the key word there - in that it suggests that the situation is not one in which doctors and family are agreed that continuing life-prolonging treatment is not in the patient's best interests.

Or are you wondering if it would be a crime for an 'interloper' to be the one to withdraw a feeding tube in a situation where everybody had already agreed to withdraw the tube?

It's more that the Doctor is committing an act that Lord Goff has decided is an omission using rather dubious logic IMHO.

osarusan

A physical act that amounts to no more than the withdrawing of life-support being considered an omission? I don't see how it's dubious.

Are there not countless cases of life-support being withdrawn, which, in almost all cases, will require a physical act from the person 'pulling the plug'? Would they not all fall into the same category?

sunshine and showers

I think that the context is key. My understanding of this was that an interloper would be purposefully acting to remove the life support, more than likely with the intent to kill the person. Whereas a doctor is omitting to continue to provide care to the patient, thereby letting nature take its course.

This was always an odd one to get your head around, imo. Still not entirely convinced.

osarusan

sunshine and showers wrote: »

I think that the context is key. My understanding of this was that an interloper would be purposefully acting to remove the life support, more than likely with the intent to kill the person. Whereas a doctor is omitting to continue to provide care to the patient, thereby letting nature take its course.

I think in both cases there is an intent to cause the death of the person, the difference being that the doctor's act is classed as a withdrawal of care that lets nature take its course...but both the act and indeed the intent behind the act is just the same, isn't it?

I am wondering if there is something unusual about the example (or reasoning) in question that makes the OP feel it is dubious, or if it is the general classing of such physical acts as omissions, and reasons behind that, that they feel is dubious.


But the OP got me thinking about something. Imagine a situation where the doctors involved in a case, and the family involved, had all come to an agreement that it was no longer in the best interests of the patient to continue to provide life-prolonging treatment. As they walked towards the patient's room to withdraw life-support (turn off a switch/remove a tube, etc), an 'interloper' walked into the room 30 seconds before they got there and performed the same act, and caused the same outcome.

What crime has been committed there?

sunshine and showers

osarusan wrote: »

I think in both cases there is an intent to cause the death of the person, the difference being that the doctor's act is classed as a withdrawal of care that lets nature take its course...but both the act and indeed the intent behind the act is just the same, isn't it?

I am wondering if there is something unusual about the example (or reasoning) in question that makes the OP feel it is dubious, or if it is the general classing of such physical acts as omissions, and reasons behind that, that they feel is dubious.


But the OP got me thinking about something. Imagine a situation where the doctors involved in a case, and the family involved, had all come to an agreement that it was no longer in the best interests of the patient to continue to provide life-prolonging treatment. As they walked towards the patient's room to withdraw life-support (turn off a switch/remove a tube, etc), an 'interloper' walked into the room 30 seconds before they got there and performed the same act, and caused the same outcome.

What crime has been committed there?

I think the entire reasoning in this case is that they are not the same thing. The doctor withdrawing care is passive and an omission, it's omitting to continue to provide life prolonging treatment. The interloper is actively trying to harm or kill the patient.

Using the logic of this judgment, the situation you have given as an example would be a criminal offence, possibly murder depending on circumstances.

ohnonotgmail

osarusan wrote: »

I think in both cases there is an intent to cause the death of the person, the difference being that the doctor's act is classed as a withdrawal of care that lets nature take its course...but both the act and indeed the intent behind the act is just the same, isn't it?

I am wondering if there is something unusual about the example (or reasoning) in question that makes the OP feel it is dubious, or if it is the general classing of such physical acts as omissions, and reasons behind that, that they feel is dubious.


But the OP got me thinking about something. Imagine a situation where the doctors involved in a case, and the family involved, had all come to an agreement that it was no longer in the best interests of the patient to continue to provide life-prolonging treatment. As they walked towards the patient's room to withdraw life-support (turn off a switch/remove a tube, etc), an 'interloper' walked into the room 30 seconds before they got there and performed the same act, and caused the same outcome.

What crime has been committed there?

the same crime as if the family and doctor were not walking towards the patients room.

osarusan

sunshine and showers wrote: »

Using the logic of this judgment, the situation you have given as an example would be a criminal offence, possibly murder depending on circumstances.

I think it would be too, but we are talking about two different interpretations of the same actions (removal of a tube) and the same intent (to cause death).

It simply depends on who is doing it, and whether they are given the authority to do it in certain circumstances.

One eyed Jack

Samuel T. Cogley wrote: »

The logic employed by Lord Goff seems a bit questionable in my view. Surely a doctor has a duty to do no harm and the removal of a feeding tube is by very definition an act, he even says so himself, yet a white coat seems to magically transform it into an omission.

The question which that implies though is whether or not it is more harmful to the patient to keep them alive by initiating treatment to prolong their life in the first place, or in the case where treatment has been initiated, to withdraw treatment and allow the patient to die. In relation to the Bland case -


If treatment fails, or ceases, to give a benefit to the patient (or if the patient competently refuses treatment), the primary goal of medical treatment cannot be realised, removing the justification. In the absence of some other justification, treatment that does not benefit the patient may, ethically and legally, be withheld or withdrawn and the goal of medicine should change to the abatement of symptoms [Section 1.1].

In practice, the decision to withhold or withdraw treatment is very difficult. One illustration of this is the 1993 House of Lords decision in the case of Tony Bland. Mr Bland was in a persistent vegetative state with no awareness of the world and no hope of recovery. He was not terminally ill but withdrawal of artificial nutrition would result in his death. Following judgments made in other jurisdictions and confirming that artificial nutrition constitutes a medical treatment, the House of Lords agreed that it could be withdrawn.

Prolonging a patient's life usually, but not always, provides a health benefit to that patient. The BMA has stated that it is not an appropriate goal of medicine to prolong life at all costs, with no regard to its quality or the burdens of treatment [Section 1.2]. There are no legal, or necessary morally relevant, differences between withholding and withdrawing treatment [Section 6.1]. However, treatment should never be withheld, when there is a possibility that it will benefit the patient, simply because withholding is considered to be easier than withdrawing treatment [Section 6.2].


Source: Withdrawal of life support disputes


And in the re a Ward of Court case, there was a more recent similar case in France which went all the way to the ECHR, and again guidelines provided by the Medical Councils Guide to Professional Conduct and Ethics -


This guide states that doctors:

have a responsibility to ensure their patients die with dignity, in comfort and with as little suffering as possible.

are not obliged to start or continue treatment or artificial nutrition and hydration that is futile or burdensome, even if such treatment may prolong life.

should carefully consider when to start and when to stop attempts to prolong life, while ensuring that patients receive appropriate pain management and relief from distress.

should respect a patient's advance healthcare plan on condition that: (i) the decision was an informed choice; (ii) the decision covers the situation that has arisen; and (iii) the patient has not changed his/her mind. 


Source: Withdrawal Of Artificial Nutrition And Hydration: Who Decides?


The point being that it's not so much that the principle of 'do no harm' applies, but rather acting in the best interests of the patient, and whether those actions are justifiable. In order for any action to be justifiable, the person taking the action must have the authority to do so, and that's where the difference is between a doctor having the authority to take an action as opposed to an interloper taking the same action. A doctor has that authority whereas an interloper doesn't.

Victor

Note that the interloper may also be committing other offences and civil wrongs.