lawindexpro - Case Law

Airedale N.H.S. Trust -v- Bland

Court: Court of Appeal

Date: 9 december 1992

Coram: Sir Thomas Bingham M.R., Butler-Sloss and Hoffmann L.JJ.

References: [1993] 2 WLR 316

9 December 1992. The following judgments were handed down.

SIR THOMAS BINGHAM M.R. Mr. Anthony David Bland, then aged 17 1/2, went to the Hillsborough ground on 15 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 ("P.V.S.").

P.V.S. 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 P.V.S. 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.

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 P.V.S. case he had ever seen.

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. Genito-urinary problems have required surgical intervention.

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 resited, 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 P.V.S. patient will quickly succumb to infection. With such care, a young and otherwise healthy patient may live for many years.

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 N.H.S. Trust as plaintiffs 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 [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 [Mr. Bland] except for the sole purpose of enabling [Mr. Bland] to end his life and die peacefully with the greatest dignity and the least of pain suffering and distress."

After a hearing in which he was assisted by an amicus curiae instructed by the Attorney-General, Sir Stephen Brown P. made these declarations (subject to a minor change of wording) on 19 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.

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 it 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.

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. Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] A.C. 871, 904-905; In re T. (Adult: Refusal of Treatment) [1992] 3 W.L.R. 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: see In re F. [1990] 2 A.C. 1. (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 W.L.R. 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.

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 P.V.S. 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: see In re B. (A Minor) (Wardship: Medical Treatment) [1981] 1 W.L.R. 1421. If the ratio of In re J. [1991] Fam. 33 is sound, an issue expressly reserved by Mr. Munby, for the Official Solicitor, for argument in the House of Lords, the court may judge it to be in a child's best interest that life-saving measures be withheld if of opinion that the life thereby prolonged would be one of intolerable pain and deprivation: see In re B. [1981] 1 W.L.R. 1421; In re J. [1991] Fam. 33. This case is novel because Mr. Bland is not a child and a ward of the court, he is immune to suffering and, as already stated, he gave no instructions concerning his treatment if he were to become a P.V.S. patient.

There can be no doubt that the administration of antibiotics is medical treatment: they cannot be lawfully obtained in this country without prescription, and the choice of antibiotic to treat a given condition calls for professional skill and knowledge. The overwhelming consensus of medical opinion in this country and the United States is that artificial feeding by nasogastric tube is also medical treatment. This is a readily understandable view. The insertion of the tube is a procedure calling for skill and knowledge, and the tube is invasive of the patient's body to an extent which feeding by spoon or cup is not. An intubated patient certainly looks as if he is undergoing treatment, and the mechanical pumping of food through a tube is a highly unnatural process. It does not, however, seem to me crucial whether this is regarded as medical treatment or not, since whether or not this is medical treatment it forms part of the patient's medical care and I cannot think the answer to this problem depends on fine definitional distinctions.

It is relevant to consider the objects of medical care. I think traditionally they have been (1) to prevent the occurrence of illness, injury or deformity (which for convenience I shall together call "illness") before they occur; (2) to cure illness when it does occur; (3) where illness cannot be cured, to prevent or retard deterioration of the patient's condition; (4) to relieve pain and suffering in body and mind. I doubt if it has ever been an object of medical care merely to prolong the life of an insensate patient with no hope of recovery where nothing can be done to promote any of these objects. But until relatively recently the question could scarcely have arisen since the medical technology to prolong life in this way did not exist. That is also a new feature of this case.

There are, however, a number of other jurisdictions in which the question has arisen and been squarely confronted.

In the United States the issue has been much litigated. Despite variations of practice and strong expressions of dissent, the courts have in the great majority of cases sanctioned the discontinuance of artificial feeding of P.V.S. patients. They have reached this result in deference to the express wishes of the patient where there were such and, where there were not, on the basis either that the court could judge what the patient's wishes would have been if expressed or that such discontinuance was in all the circumstances in the patient's best interests. The courts have consistently rejected the suggestion that such discontinuance amounts to suicide or criminal homicide. Since U.S. courts exercise a parens patriae jurisdiction even in relation to adults, these cases must be viewed with reserve, but the trend of authority is clear.

In the South African case of Clarke v. Hurst (unreported), 30 July 1992 (Supreme Court of South Africa, Durban and Coast Local Division) there was evidence of a P.V.S. patient's wish that his life should not be artificially prolonged, but the court acted on wider grounds in sanctioning the discontinuance of nasogastric and other non-natural feeding methods and the withholding of medical treatment.

In New Zealand the question arose in relation to a victim of the Guillain-Barre syndrome who had expressed no wishes concerning his treatment: In re J.H.L. (unreported), 13 August 1992 (High Court of New Zealand). Thomas J. delivered a comprehensive oral judgment in the course of which he said:

"In my view, doctors have a lawful excuse to discontinue ventilation when there is no medical justification for continuing that form of medical assistance. To require the administration of a life support system when such a system has no further medical function or purpose and serves only to defer the death of the patient is to confound the purpose of medicine. In such circumstances, the continuation of the artificial ventilation may be lawful, but that does not make it unlawful to discontinue it if the discontinuance accords with good medical practice."

Having considered In re J. [1993] Fam. 15 he said:

"The point, for present purposes is, as I apprehend it, that a doctor acting in good faith and in accordance with good medical practice is not under a duty to render life support necessary to prolong life if that is, in his or her judgment, contrary to the best interests of the patient."

Finally he concluded:

"Medical science and technology has advanced for a fundamental purpose; the purpose of benefiting the life and health of those who turn to medicine to be healed. It surely was never intended that it be used to prolong biological life in patients bereft of the prospect of returning to an even limited exercise of human life.

Nothing in the inherent purpose of these scientific advances can require doctors to treat the dying as if they were curable. Natural death has not lost its meaning or significance. It may be deferred, but it need not be postponed indefinitely. Nor, surely, was modern medical science ever developed to be used inhumanely. To do so is not consistent with its fundamental purpose. Take the case of a man riddled with cancer, in constant agony, and facing imminent death. Is he to be placed upon a respirator? On the contrary, it has been generally accepted that doctors may seek to alleviate a patient's terminal pain and suffering even though the treatment may at the same time possibly accelerate the patient's death. As I perceive it, what is involved is not just medical treatment, but medical treatment in accordance with the doctor's best judgment as to what is in the best interests of his or her patient. They remain responsible for the kind and extent of the treatment administered and, ultimately, for its duration. In exercising their best judgment in this regard it is crucial for the patient and in the overall interests of society that they should not be inhibited by considerations pertinent to their own self-interest in avoiding criminal sanctions. Their judgment must be a genuinely independent judgment as to what will best serve the well-being of their dying patients. Conscientious doctors will undoubtedly continue to strive with dedication to preserve and promote the life and health of their patients. That is their primary mission. But with a patient such as Mr. L., where 'life' is being prolonged for no therapeutic or medical purpose or, in other words, death is merely being deferred, the doctor is not under a duty to avert that death at all costs. If, in his judgment, the proper medical practice would be to discontinue the life support system, and that would be in the best interests of his patient, he may do so subject to adhering to a procedure which provides a safeguard against the possibility of individual error."

In Nancy B. v. Hotel-Dieu de Quebec (1992) 86 D.L.R. (4th) 385 the Quebec Superior Court granted the plaintiff, a victim of the Guillain-Barre syndrome whose intellectual faculties were unimpaired but whose survival was dependent on artificial respiration, an order that further treatment be discontinued. That was, however, in response to her express and informed wish. A question closer to the present was addressed by the Law Reform Commission of Canada in its Working Paper No. 28 on Euthanasia, Aiding Suicide and Cessation of Treatment (1982), which stated, at p. 65:

"At this stage, it may be useful to summarize the tentative conclusions which the Commission has reached to date. These conclusions are as follows: (1) the law should recognize the competent patient's wishes and respect them as regards the cessation or non-initiation of treatment; (2) the law should clearly state that a physician acts legally when he decides to terminate or not to initiate treatment which is useless or which no longer offers reasonable hope, unless the patient has expressed his wishes to the contrary; (3) the law should recognize that the prolonging of life is not an absolute value in itself and that therefore a physician does not act illegally when he fails to take measures to achieve this end, if these measures are useless or contrary to the patient's wishes or interests; (4) the law should recognize that a physician who continues to treat a patient against his wishes is subject to the provisions of the Criminal Code; (5) the law should recognize that the incapacity of a person to express his wishes is not a sufficient reason to oblige a physician to administer useless treatment for the purpose of prolonging his life; (6) the law should recognize that in the case of an unconscious or incompetent patient, a physician incurs no criminal responsibility by terminating treatment which has become useless."

After extensive consultation, the Commission recommended in Report 20 (on the same subject), at p. 27:

"a physician should not incur any criminal liability if he decides to discontinue or not initiate treatment for an incompetent person, when that treatment is no longer therapeutically useful and is not in the person's best interest."

In this country, a discussion paper published by the Ethics Committee of the British Medical Association in September 1992 recorded that there had been no prosecutions in Scotland in cases where doctors had withdrawn nutrition from P.V.S. patients with the agreement of the patients' families. An earlier B.M.A. report had expressed the view that

"feeding/gastrostomy tubes for nutrition and hydration are medical treatments and are warranted only when they make possible a decent life in which the patient can reasonably be thought to have a continued interest . . . There is no justification for continuing medical intervention in such a state and the working party feels that the individual concerned is most appropriately treated as an incompetent patient with a terminal condition."

In 1991 the Institute of Medical Ethics published a majority view that "it can be morally justified to withdraw artificial nutrition and hydration from patients in persistent vegetative state."

In seeking declarations from the court Mr. Francis, for the plaintiff Trust, relied on the reasoning underlying this weight of authority, as did Mr. Lester who supported the plaintiffs' application. The central steps in the argument were, I think, these: (1) The question whether artificial feeding and antibiotic treatment of Mr. Bland should be discontinued is one to be resolved by the doctors in charge of his case, in consultation with independent medical experts, conscientiously exercising a careful and informed judgment of what the best interests of their patient require. In forming that judgment it is appropriate for them to take full account of the family's wishes, as they have done. (2) While the respect accorded to human life always raises a presumption in favour of prolonging it, that presumption is not irrebuttable. (3) Mere prolongation of the life of a P.V.S. patient such as Mr. Bland, with no hope of any recovery, is not necessarily in his best interests, if indeed such prolongation is in his interest at all. (4) In making an objective judgment of Mr. Bland's best interests, account can be taken not only of any pain and suffering which prolonged feeding and medication might cause but also of wider, less tangible considerations. (5) The assessment of Mr. Bland's best interests, although a matter for his doctors in the first instance, is ultimately subject to the sanction of the court where (as here) its jurisdiction is invoked. There is no ground for overriding their judgment.

Step (1) of this argument is in my view consistent with the English authority already referred to. I do not think there is any English authority inconsistent with it.

If the reasoning of In re J. [1991] Fam. 33 is sound, step (2) of the argument is also sound. I think that the reasoning in In re J. is sound. It is also consistent with the reasoning in In re B. [1981] 1 W.L.R. 1421 and In re C. [1990] Fam. 26. In any event the ratio of In re J. is binding on this court.

I would for my part accept step (3). Looking at the matter as objectively as I can, and doing my best to look at the matter through Mr. Bland's eyes and not my own, I cannot conceive what benefit his continued existence could be thought to give him. It might be different were it possible to hope that, if he lived long enough, means might be found to restore some part of his faculties, but no grounds have been suggested for cherishing such a hope and the physiological findings appear to preclude it.

It is of course true that pain and suffering, which may (if the foregoing reasoning is sound) weigh in the balance against the presumption in favour of life, are here to be ignored because of Mr. Bland's insensible condition. But I accept the argument in step (4) that account may be taken of wider and less tangible considerations. An objective assessment of Mr. Bland's best interests, viewed through his eyes, would in my opinion give weight to the constant invasions and humiliations to which his inert body is subject; to the desire he would naturally have to be remembered as a cheerful, carefree, gregarious teenager and not an object of pity; to the prolonged ordeal imposed on all members of his family, but particularly on his parents; even, perhaps, if altruism still lives, to a belief that finite resources are better devoted to enhancing life than simply averting death.

I accept step (5). In cases where assessment of the patient's best interests is not undertaken by the court itself (as in wardship), the doctors' assessment is nonetheless subject to the court's review, where its jurisdiction is invoked. Such review may be of real value in excluding the possibilities of medical error, misapprehension of the correct approach, divisions of opinion, conflicts of interest, improper motives and so on. On the doctors' premises, the President found no reason to impugn the doctors' judgment and none was suggested. Unless their premises can be effectively challenged, there is in my view no ground for withholding the court's sanction.

I have not so far directly addressed the submissions made to the court by Mr. Munby for the Official Solicitor. He did, however, challenge, radically and robustly, the premises upon which the doctors' judgment was based. To those submissions I now turn.

Mr. Munby's first submission was that to withdraw Anthony Bland's feeding tube is to do an act which will inevitably cause, and is intended to cause, his death. It is, therefore, necessarily unlawful and criminal. This is so whether or not artificial feeding is medical treatment. The submission was a short one. Reliance was placed on Devlin J.'s famous direction in Reg. v. Adams (unreported), 8 April 1957 that "no doctor, nor any man, no more in the case of the dying than of the healthy, has the right deliberately to cut the thread of life." Attention was also drawn to Ognall J.'s recent direction to the jury in Reg. v. Cox (unreported), 18 September 1992 that there is an "absolute prohibition on a doctor purposefully taking life as opposed to saving it." Accordingly it is said that the doctors' proposed course of action (at least in relation to feeding) would amount at least to manslaughter, at most to murder.

I have some difficulty in regarding this as a practical issue, since both Reg. v. Adams and Reg. v. Cox concerned drugs said to have been deliberately administered to cause or hasten death and I cannot on the present facts imagine any prosecutor prosecuting, any judge leaving the issue to a jury or any jury convicting. But that does not meet the theoretical argument.

The submission may perhaps be tested by three hypothetical examples. (1) In compliance with the express instructions of a P.V.S., patient given before onset of the condition, when the patient was adult and of sound mind, a doctor discontinues artificial feeding after three years and the patient dies. Has the doctor aided and abetted suicide? I think the answer plainly is that he has not. Why not? There are several possible answers. One is that it cannot be unlawful to act in accordance with the instructions of an adult patient of sound mind. Another is that the patient lacked the intent necessary for suicide. A third is that it was not the discontinuance of artificial feeding but the patient's condition and its underlying cause which caused his death. A fourth is that the doctor lacked the intent necessary for aiding and abetting suicide. It may be all four answers are correct. But if it was not the discontinuance which caused the death or if the doctor lacked the intent to kill he would have defences to murder and perhaps manslaughter also even if the patient had given no instructions.

(2) A P.V.S. patient's nasogastric tube becomes defective after years of use and has to be removed. The doctor has to decide whether to continue artificial feeding through a replacement nasogastric tube or a newly implanted gastrostomy tube. He decides that in all the circumstances, three years after the onset of the condition and with no hope of improvement, it is not in the patient's best interests to do so. He does not do so and the patient dies. Is the doctor guilty of murder or manslaughter? In my view plainly not. If that is so, and the doctors here were to be guilty, it could only be because of a distinction between initiating a new regime of artificial feeding and discontinuing an existing regime. Where the doctor's duty to the patient (to care for him with ordinary professional skill in the patient's best interests) is the same in the two cases, I cannot think that criminal liability depends on such a distinction. The doctor must be guilty in both cases or neither.

(3) A P.V.S. patient shows signs of life-threatening failure of, in succession, heart, lungs, liver, kidneys, spleen, bladder, pancreas. In each case the failure can be safely rectified by serious surgery, carried out without pain or distress to the unconscious patient. Is the doctor obliged to undertake these life-saving procedures? Although pointing out, correctly, that his first submission related only to artificial feeding, Mr. Munby answered that the doctor was so obliged. Such a suggestion is in my view so repugnant to one's sense of how one individual should behave towards another that I would reject it as possibly representing the law. But if I am right to reject it, the doctors could only be guilty here if some distinction were to be drawn between the surgical procedures described and artificial feeding. But I do not think that criminal liability can depend on the relative invasiveness of different invasive procedures.

A doctor who discontinues artificial feeding of a P.V.S. patient, after a lapse of time which entitles him to be sure that there is no hope of recovery, in pursuance of a conscientious and proper judgment that such discontinuance is in the patient's best interests, is in my view guilty of no crime. For present purposes I do not think it greatly matters whether one simply says that that is not an unlawful act, or that the doctor lacks criminal intent, or that he breaches no duty or that his act did not cause death. But even if this first submission were (contrary to my view) sound, it would leave the doctors free to discontinue antibiotics, with the result that Mr. Bland would die sooner rather than later, perhaps less peacefully than on withdrawal of artificial feeding. The factual merits of the submission are not compelling.

Mr. Munby's second submission was to withdraw Anthony Bland's feeding tube is a breach of the doctors' duty to care for and feed him: discontinuance of mechanical hydration and nutrition involves the withdrawal of food, not the withdrawal of medical treatment. Since it will inevitably cause, and is intended to cause, his death, it is necessarily unlawful and criminal.

I think it is evident from what I have already said that I do not accept any ingredient of this submission for reasons I have given. Its falsity is in my view highlighted by an attempted analogy with Reg. v. Stone [1977] Q.B. 354, where the defendant convicted of manslaughter had failed to supply food or procure medical attention for an elderly and infirm but conscious woman who was perfectly capable of feeding herself if food was supplied.

Mr. Munby's third submission was that in any event, and even assuming that artificial feeding is properly to be regarded as medical treatment (and it ought not to be), there is no justification for withdrawing that treatment. To withdraw Anthony Bland's feeding tube is a breach of the doctors' duty to treat and nurse him. Since it will inevitably cause, and is intended to cause, his death, it is necessarily unlawful and criminal. Again, I think it is evident from what I have already said that I do not accept any ingredient of this submission for reasons I have given.

I turn lastly to the issue of procedure, on the assumption that the plaintiff Trust is entitled to the declarations made. There was only limited dispute about this. At the end of his judgment, the President held that in cases of this kind application should be made to the court to obtain its sanction for the course proposed. This was in my respectful view a wise ruling, directed to the protection of patients, the protection of doctors, the reassurance of patients' families and the reassurance of the public. The practice proposed seems to me desirable. It may very well be that with the passage of time a body of experience and practice will build up which will obviate the need for application in every case, but for the time being I am satisfied that the practice which the President described should be followed.

I would dismiss the appeal. I have read in draft the judgments of Butler-Sloss and Hoffmann L.JJ. and agree also with their reasons for reaching this conclusion.

BUTLER-SLOSS L.J. This is a tragic case and the necessary dispassionate consideration of all the necessary components of the issues before us should not blind us to the anguish of the family for whom everyone feels the greatest sympathy.

Each court seised of these issues has an awesome task to face. In doing so we have to rid ourselves of emotional overtones and emotive language which do not assist in elucidating the profound questions which require to be answered.

The facts are not in dispute. The present condition of Tony Bland has been described by Sir Thomas Bingham M.R. He is at the extreme end of the spectrum of those suffering from the condition of persistent vegetative state. He has been in that state for three and a half years and there is, while he lives, no release from it. He is in a "state of chronic wakefulness without awareness" (American Medical Association Council Report, January 1990), and has irreversible loss of cognition. A recent surgical operation was carried out on him without anaesthetic, and his future care and whether he does or does not receive nutrition and hydration, or the manner in which he will die will be a matter of indifference to him in his present state.

His ability to survive with artificial support is a product of the medical advances in recent years. Medical science and technology have provided for many a cure or alleviation of injury or disease but have also created conditions which allow Anthony Bland to exist in a twilight world. Twenty years ago he would not have survived.

Self-determination

The starting point for consideration, in my view, is the right of a human being to make his own decisions and to decide whether to accept or reject treatment, the right of self-determination. Such a decision may be rational or irrational: see Sidaway v. Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] A.C. 871, 904-905. Counsel all agree that the right to reject treatment extends to deciding not to accept treatment in the future by way of advance directive or "living will." A well known example of advance directive is provided by those subscribing to the tenets of the Jehovah's Witnesses who make it clear that they will not accept blood transfusions: see, for example, Malette v. Shulman (1990) 67 D.L.R. (4th) 321. The provision of treatment by a doctor without the consent of the patient other than in an emergency is likely to be a trespass: see In re F. (Mental Patient: Sterilisation) [1990] 2 A.C. 1, 71, per Lord Goff of Chieveley, Schloendorff v. Society of New York Hospital (1914) 211 N.Y. 125, 129, per Cardozo J.

In this case Anthony Bland has not given a clear indication of his views. His family are unable to consent to his behalf: see In re T. (Adult: Refusal of Treatment) [1992] 3 W.L.R. 782, 787, per Lord Donaldson of Lymington M.R. His father expressed in evidence his view that his son would not have wished to live in his present state. As Lord Donaldson of Lymington M.R. said in In re T., at p. 787, the views of relatives may reveal that the patient had made an anticipatory choice which does not arise here. The views of the family must always be treated with respect and will be an important consideration in the overall assessment. In some cases the evidence of relatives will require to be treated with great caution since there may be hidden motives. There is no suggestion that such concerns arise in this family.

Lack of consent

Mr. Bland is both by medical and legal standards incompetent in that he lacks the capacity to give valid consent to medical treatment. No one can consent on his behalf. The parens patriae jurisdiction of the High Court no longer exists and in In re F. [1990] 2 A.C. 1 the House of Lords held that at common law there was no jurisdiction in the court to approve or disapprove the giving of medical treatment to such a patient. The lawfulness of the action depended upon whether the treatment was in the best interests of the patient. The House of Lords then devised a procedure in cases of proposed sterilisation of those unable to consent that a declaration might be made by the High Court as to whether such an operation was in the best interests of the patient.

Two possible approaches have been suggested to us, the United States preferred route of substituted judgment or the objectively ascertained best interests of the patient. The majority of state superior courts (of the United States) have, in the absence of expressed wishes, founded their decisions on similar issues on the exercise of a substituted judgment based upon ascertaining the patient's known views, beliefs, philosophy and lifestyle. In the absence of sufficient information many of the American courts have made decisions based upon the patient's "best interests."

Although it appears in origin derived from the English common law, the American approach based on substituted judgment appears to have little in common with the trend discernible in recent English decisions, all of which consider the objective best interests of the patient: see for example In re F. [1990] 2 A.C. 1: In re T. [1992] 3 W.L.R. 782. I can see no reason to extend the test of substituted judgment beyond the Court of Protection. In assessing the best interests of Anthony Bland, however, his views, personality, how others including his family saw him before his accident will form part of that assessment, although that evidence has a subjective element.

Medical treatment

Before considering the duty of care of the doctor towards his patient, it is necessary to deal with the argument of Mr. Munby that the method of providing nutrition to Anthony Bland is not "medical treatment." All but one of the doctors who gave evidence to Sir Stephen Brown P. treated it as such, and even Dr. Andrews, who disagreed, accepted that, if asked to do so by a patient who was capable of making a decision, he would remove the nasogastric tube. The evidence of the doctors was supported by a wealth of medical expertise that it is medical treatment, the Report of the British Medical Association, the American Medical Association, the Medical Ethics Committees of England and of the United States. It is also the conclusion of the Supreme Courts of many of the states of the United States and, even more persuasive, of the Supreme Court of the United States in Cruzan v. Director, Missouri Department of Health (1990) 110 S.Ct. 2841. Interestingly, the Mental Health Act 1983 includes nursing in its definition of "medical treatment."

Although Mr. Munby, for the Official Solicitor, argued that it is not "medical treatment" there was overwhelming evidence upon which the President was entitled to conclude that it is.

If we describe what is being done by the doctors and nurses for Anthony Bland and others in his condition as medical care rather than treatment, it may to the layman make more sense and avoid the uncomfortable attempt to draw a line between different forms of feeding such as spoon-feeding a helpless patient or inserting a tube through the nose or direct into the stomach.

The definition of medical treatment does not, in my view, of itself resolve the problem. The underlying issue is whether, under the extreme circumstances of this case, there is a duty upon his doctor to continue to provide to Anthony Bland nutrition and hydration by an artificial method. Mr. Munby argued that there are basic needs which are the right of a patient, the need for air and the need for nutrition. That is in my view too narrow an expression of basic needs, which cannot be seen in isolation from general care including for instance warmth and hygiene.

Duty of care

A doctor owes a duty of care towards his patient and in the case of a patient unable to give instructions or consent to treatment, a duty to treat him in the patient's best interests: see In re F. [1990] 2 A.C. 1. The general duty of a doctor is to act in accordance with a responsible and competent body of relevant professional opinion based upon the principles laid down in Bolam v. Friern Hospital Management Committee [1957] 1 W.L.R. 582: ("the Bolam test"). In carrying out his duty towards his patient a doctor is faced all the time with a series of decisions each of which requires choices - a choice whether to operate, whether to initiate other invasive treatment such as chemotherapy, whether to give antibiotics. As his care of the patient progresses he may have to decide whether to discontinue a process conscious that such a choice marks not only the cessation of effective treatment but also brings closer the end of his patient's life. Medical ethics draw no distinction between the withholding of treatment and the withdrawing of treatment. It is accepted by Mr. Munby that in making those decisions and choosing one course rather than another the doctor is rightly guided by the value of the treatment given and the lack of value of other treatment proposed and from time to time the futility of giving any further treatment which will not benefit the patient. The assessment of the futility of the treatment is in his view justification for ceasing the treatment. He argued nonetheless that, since feeding is not treatment, the futility of continuing useless treatment does not arise, and in any event it is never futile to feed. Nevertheless decisions have to be made about future treatment which involve choices such as whether to provide antibiotics. The President found that it was the unanimous opinion of all the distinguished doctors who have examined Mr. Bland that there is no hope whatsoever of recovery or improvement of any kind. The only purpose of the present care is to keep him artificially alive within his present condition. The medical team caring for Mr. Bland have formed the medical opinion that it is in his best interests to discontinue all forms of treatment including the provision of nutrition and hydration.

The question then arises as to the extent or limit of the duty of care of the doctor towards a P.V.S. patient. The formulation of the duty of care within the Bolam test may not by itself be an adequate basis for this grave decision which requires more than the decision as to the uselessness of future treatment. The principle of the best interests of an incompetent patient in the present circumstances encompasses wider considerations, including some degree of monitoring of the medical decision.

There is a conflict between the principle of self-determination and whatever may be the equivalent right of those who cannot choose and another basic principle of our society, the preservation of life. Lord Donaldson of Lymington M.R. spoke in In re J. (A Minor) (Wardship: Medical Treatment) [1991] Fam. 33 of the vast importance of the sanctity of the human life. I respectfully agree with him. Its importance cannot be over-emphasised. He said, at p. 46:

"The decision on life and death must and does remain in other hands. What doctors and the court have to decide is whether, in the best interests of the child patient, a particular decision as to medical treatment should be taken which as a side effect will render death more or less likely. This is not a matter of semantics. It is fundamental. At the other end of the age spectrum, the use of drugs to reduce pain will often be fully justified, notwithstanding that this will hasten the moment of death. What can never be justified is the use of drugs or surgical procedures with the primary purpose of doing so."

Lord Donaldson of Lymington M.R. then set out the balancing exercise to be performed:

"This brings me face to face with the problem of formulating the critical equation. In truth it cannot be done with mathematical or any precision. There is without doubt a very strong presumption in favour of a course of action which will prolong life, but even excepting the 'cabbage' case to which special considerations may well apply, it is not irrebuttable."

Mr. Munby argued in In re J. the fundamentalist or absolutist approach, that the pain and suffering experienced and to be experienced by that child should not displace the sanctity of life, including the preservation of the life of that child, whatever it was to be. This court rejected that approach and placed on the other side of the critical equation the tragic situation of the child concerned and the quality of his life. Lord Donaldson of Lymington M.R., at p. 46, did not feel bound to follow the views expressed (obiter) in In re B. (A Minor) (Wardship: Medical Treatment) [1981] 1 W.L.R. 1421, as to the degree of awfulness or intolerability of treatment which might be proposed as providing a quasi-statutory yardstick. He left the door open. Apart from preferring to use a word other than "cabbage," I respectfully agree with him. In In re B. this court was considering a simple operation to clear an intestinal obstruction of a Downs' Syndrome baby. The circumstances of In re J. or of this appeal were not considered by the members of the court. Dunn L.J. pointed out, at p. 1424, that there was no reliable prognosis as to the life expectancy of the child and no evidence at all about the quality of life the child might expect.

Although this court in In re J. [1991] Fam. 33 was exercising the parens patriae jurisdiction, the approach is equally apposite to an incompetent adult, since the consideration of best interests has to import a balancing exercise which Mr. Munby recognised. His answer was that severe pain and suffering as experienced by the child in In re J. is the only factor which can be put on the other side of the equation to the sanctity of life. He reserved his position to argue elsewhere that In re J. was wrongly decided and there was nothing to place in the balance against the sanctity of life. In his argument to this court the interests of the P.V.S. patient are limited to that sole consideration.

To place pain and suffering in an unique category, the existence of which may justify foregoing the preservation of the sanctity of life, does not appear to me to be justifiable. Two reasons come immediately to mind. First, on a practical level, according to Mr. Munby the exception of extreme pain can be justified on the basis that it can be objectively verified. The degree of resistance to pain varies enormously from person to person and is intensively subjective however its existence as such may be objectively verified. It is not an absolute state and it will always be a matter of degree as to whether the state of pain of an incompetent patient is sufficiently severe to meet the necessary criterion. If it is to be the only criterion, excluding all other considerations, the lack of clarity in formulating when it comes into play, creates for me a logical problem in accepting it alone on the other side of the equation.

There is however a second and more fundamental objection. The case for the universal sanctity of life assumes a life in the abstract and allows nothing for the reality of Mr. Bland's actual existence. There are clearly dangers in departing from the fundamental approach to the preservation of life, but in the American decisions it is not conclusive. Two exceptions are already recognised in English common law, the right of self-determination and the In re J. situation of extreme pain and suffering: see [1991] Fam. 33. The quality of life has already been recognised as a factor and placed in the equation to allow a life not to be prolonged at all costs. Taylor L.J. said in In re J., at p. 55: "Once the absolute test is rejected, the proper criteria must be a matter of degree." To limit the quality of life to extreme pain is to take a demeaning view of a human being. There must be something more for the humanity of the person of a P.V.S. patient. He remains a person and not an object of concern. In In re Conroy (1985) 486 A.2d 1209, 1248, Handler J. supports this approach:

"Clearly, a decision to focus exclusively on pain as the single criterion ignores and devalues other important ideals regarding life and death. Consequently, a pain standard cannot serve as an indirect proxy for additional and significant concerns that bear on the decision to forego life-prolonging treatments."

The concentration exclusively upon pain is to me an unacceptable approach to a patient in Anthony Bland's extreme situation. There are other factors to be placed in the critical equation.

Those other factors have not so far been explored in English decisions but they have been considered extensively in the United States and in a recent case in New Zealand. In Cruzan v. Director, Missouri Department of Health, 110 S.Ct. 2841 (a P.V.S. case) Stevens J. (in a dissenting opinion) said, at p. 2885:

"But Nancy Cruzan's interest in life, no less than any other person, includes an interest in how she will be thought of after her death by those whose opinions mattered to her. There can be no doubt that her life made her dear to her family, and to others. How she dies will affect how that life is remembered."

In In the Guardianship of Jane Doe (1992) 583 N.E.2d 1263 the Supreme Judicial Court of Massachusetts (in a P.V.S. case where the patient had always been incompetent) held that incompetent individuals have the same rights as competent individuals to refuse and terminate medical treatment. Abrams J., giving the majority opinion, accepted the rights of the patient to bodily integrity and privacy and upheld the judge's decision to terminate nasoduodenal feeding and hydration. In re Jobes (1987) 529 A.2d 434 (a P.V.S. patient) following In re Quinlan (1976) 355 A.2d 647, upheld the principle of self-determination for the incompetent. The views of the family were accepted in each of those cases. Handler J. in a concurring opinion considered the best interests test and, after describing the extreme physical condition of Mrs. Jobes (very similar to Mr. Bland), repeated a passage in his opinion in In re Conroy, at p. 1249:

"The medical and nursing treatment of individuals in extremis and suffering from these conditions entails the constant and extensive handling and manipulation of the body. At some point, such a course of treatment upon the insensate patient is bound to touch the sensibilities of even the most detached observer. Eventually, pervasive bodily intrusions, even for the best of motives, will arouse feelings akin to humiliation and mortification for the helpless patient. When cherished values of human dignity and personal privacy, which belong to every person living or dying, are sufficiently transgressed by what is being done to the individual, we should be ready to say: enough."

He went on to say, 529 A.2d 434, 459: "Based upon such factors it should be possible to structure critical treatment decisions that are reliable, understandable and acceptable."

In re J.H.L., 13 August 1992 (High Court of New Zealand, Auckland Registry), was an extreme example of a Guillain-Barre syndrome, causing a condition somewhat similar to a P.V.S. patient where the doctors sought a declaration that to withdraw artificial ventilation would not constitute culpable homicide. Thomas J. granted the declaration and in doing so considered decisions from a number of common law jurisdictions including the American and our own. He referred to:

"Values of human dignity and personal privacy ... Human dignity and personal privacy belong to every person, whether living or dying. Yet, the sheer invasiveness of the treatment and the manipulation of the human body which it entails, the pitiful and humiliating helplessness of the patient's state, and the degradation and dissolution of all bodily functions invoke these values."

The judge based his decision upon the best interests test. Mr. Munby accepted that there was no difference in principle between the ventilator and the nasogastric tube.

Although the American decisions are often based upon the principle of achieving the right of an incompetent patient to make decisions as if competent through the device of the substituted judgment, in many cases the distinction from best interests is blurred as Handler J. pointed out in In re Jobes, 529 A.2d 434, 456, and in some cases it is clearly an objective assessment of best interests and the decisions are persuasive support for considerations far wider than the factor of pain to be taken into account in balancing the critical equation.

We all of course recognise that a patient unable to choose cannot himself exercise his right of self-determination and he cannot make the irrational decision he might notionally have made if in possession of his faculties. But not to be able to be irrational does not seem to me to be a good reason to be deprived of a rational decision which could be taken on his behalf in his best interests. Otherwise, if, as I believe they are, other factors as well as pain are relevant considerations, he is put at an unfair disadvantage.

A mentally incompetent patient has interests to be considered and protected, the basic one being the right to be properly cared for by others. He retains the right to have proceedings taken on his behalf, for instance to claim damages for negligence, or to have his estate or other property managed for him, or to respond to actions or proceedings taken against him, such as divorce proceedings. He retains in my view the right to be well-regarded by others, and to be well-remembered by his family. That right is separate from that of his family to remember him and to have the opportunity to grieve for him when he is dead. He has the right to be respected. Consequently he has a right to avoid unnecessary humiliation and degrading invasion of his body for no good purpose. I was dismayed to hear the argument of the Official Solicitor that, if Mr. Bland suffered a cardiac arrest or a renal failure, it would be the duty of the doctors to perform a heart bypass operation or a kidney transplant. I cannot believe that a patient in the situation of Mr. Bland should be subjected to therapeutically useless treatment contrary to good medical practice and medical ethics which would not be inflicted upon those able to choose. It is an affront to his right to be respected.

The considerations as to the quality of life of Mr. Bland now and in the future in his extreme situation are in my opinion rightly to be placed on the other side of the critical equation from the general principle of the sanctity and inviolability of life. In this appeal those factors which include the reality of Mr. Bland's existence outweigh the abstract requirement to preserve life. The doctors charged with his care have balanced that equation from the medical standpoint and, after consultation with the family who are in agreement, have concluded that his best interests lie in not artificially prolonging his life. The President reconsidered all the relevant matters and came to the conclusion that to discontinue the artificial feeding would be in accordance with good medical practice and was in the best interests of Mr. Bland. In my respectful view he was right and I entirely agree with his conclusion. The duty of the doctors towards a P.V.S. patient at the extreme end of the spectrum does not extend to prolonging his life at all costs. Where they can be medically certain on all the evidence that he has been suffering from loss of consciousness without hope of recovery for a substantial period of time, in my judgment they are not in breach of their duty of care if they discontinue the artificial nutrition and hydration.

The criminal law

The thrust of Mr. Munby's argument has been that it is unlawful to discontinue artificial feeding and consequently the doctors would be at risk of criminal proceedings. If a doctor owes a duty to continue to treat or to provide artificial nutrition, his failure to do so is a breach of his duty to the patient and may not only be actionable, but also a criminal act. In my view, as I have already set out in this judgment, I do not consider that there remains a duty of care upon the doctors to continue the artificial feeding and I agree with Mr. Lester that there is no actus reus and no unlawful act or omission. The issue of mens rea does not arise.

There has been no criminal prosecution on these facts in England. My view is supported, however, by the decision of the Superior Court of the State of California, in the County of Los Angeles, in Barber v. Superior Court of State of California 195 Cal.Rptr. 484. The court held that the doctors' omission to continue treatment though intentional and with knowledge that the patient would die was not unlawful failure to perform a legal duty.

The position of Dr. Cox is different (Reg. v. Cox, 18 September 1992, Ognall J.). He injected a lethal dose which was designed to cause death and was an external and intrusive act committed by an outsider and was not in accordance with his duty of care as a doctor. The effect of the cessation of artificial feeding is to place the patient in the position he would have been in before the nasogastric tube was inserted. Without the tube he would have died from his medical condition and with it he has been artificially kept alive despite that condition until now. Whether this is an act or omission carries the matter no further. The distinction between Mr. Bland's doctors and Dr. Cox is between an act or omission which allows causes already present in the body to operate and the introduction of an external agency of death.

The idea of ceasing the artificial feeding is a distressing one for all of us to contemplate. It would no doubt also be distressing for those who are caring for Mr. Bland. We know however from the medical evidence that it would not be a distressing or painful experience for him in his state of non-cognition. The manner of his death can be eased for him and those seeing it by appropriate medical and nursing care until the end of his life.

I have anxiously considered whether this is a decision which ought to be taken by the doctors alone. As the House of Lords said in In re F. [1990] 2 A.C. 1, it is not generally for the courts to intervene in the decision-making process as to whether a course of action is in the best interests of a patient. That process is for the doctors. The B.M.A. have laid down careful guidelines for these cases. Nonetheless in In re F. the House of Lords recognised an exceptional situation which required guidance from the High Court. I have been persuaded by the amicus that in a decision-making process of such gravity as whether to continue treating a P.V.S. patient, the intervention of the High Court is a proper safeguard. I respectfully agree with the formulation of the procedures proposed by the President and that, for the time being at least, each application to discontinue treatment should be made to the High Court. The rapid advances of medical technology create problems which may require the intervention of the courts from time to time. Such intervention may also reassure public concern.

I would dismiss the appeal.

HOFFMANN L.J. Anthony Bland was a cheerful teenager from Keighley in Yorkshire. He enjoyed pop music, football and drinking with his friends. In the spectators' pen at Hillsborough Football Stadium on 15 April 1989 his lungs were crushed by the pressure of the crowd around him. He ceased breathing until resuscitated by first aid. While he could not breathe, his brain was deprived of oxygen.

The human brain consists of the cerebral hemispheres and the lower centre of the brain, which is called the brain stem. The cerebral hemispheres, or more precisely their outer layers, which are called the cerebral cortex, contain the function of consciousness. Without them, we cannot see, hear, feel pain or pleasure, or make any voluntary movements. The brain stem controls the body's semi-autonomous movements, like breathing, reflex actions and the beating of the heart.

The cerebral cortex requires a constant supply of oxygen, glucose and blood. An interruption of oxygen for a few minutes can cause extensive damage to the cells of the cortex, which never regenerate. But the brain stem is relatively resistant to being deprived of oxygen. It may therefore continue to function, and enable the heart to beat, the lungs to breathe and the stomach to digest, after the cortex has been irretrievably destroyed. This condition has been called "persistent vegetative state."

Since 15 April 1989 Anthony Bland has been in persistent vegetative state. He lies in Airedale General Hospital in Keighley, fed liquid food by a pump through a tube passing through his nose and down the back of his throat into the stomach. His bladder is emptied through a catheter inserted through his penis, which from time to time has caused infections requiring dressing and antibiotic treatment. His stiffened joints have caused his limbs to be rigidly contracted so that his arms are tightly flexed across his chest and his legs unnaturally contorted. Reflex movements in the throat cause him to vomit and dribble. Of all this, and the presence of members of his family who take turns to visit him, Anthony Bland has no consciousness at all. The parts of his brain which provided him with consciousness have turned to fluid. The darkness and oblivion which descended at Hillsborough will never depart. His body is alive, but he has no life in the sense that even the most pitifully handicapped but conscious human being has a life. But the advances of modern medicine permit him to be kept in this state for years, even perhaps for decades.

The question in this appeal is whether the court should in these circumstances declare that those in charge of caring for Anthony Bland may lawfully stop providing the artificial means of keeping him alive. This is a terrible decision because the consequence is that he will die. It is a question which until relatively recently would never have arisen. A person who had irreversibly lost consciousness would quickly have died: from lack of nutrition or from one of the many complications which have afflicted Anthony Bland's body over the past three years and which medical technology has been able to hold at bay. Modern medicine therefore faces us with fundamental and painful decisions about life and death which cannot be answered on the basis of normal everyday assumptions.

For reasons which I will eventually state quite briefly, I agree with Sir Thomas Bingham M.R. and Butler-Sloss L.J. that in English law it would be lawful for the Airedale General Hospital to stop keeping Anthony Bland alive. But this case has caused a great deal of public concern. People are worried, perhaps not so much about this particular case, but about where it may lead. Is the court to assume the role of God and decide who should live and who should die? Is Anthony Bland to die because the quality of his life is so miserable? Does this mean that the court would approve the euthanasia of seriously handicapped people? And what about the manner of his death? Can it ever be right to cause the death of a human being by deliberately depriving him of food? This is not an area in which any difference can be allowed to exist between what is legal and what is morally right. The decision of the court should be able to carry conviction with the ordinary person as being based not merely on legal precedent but also upon acceptable ethical values. For this reason I shall start by trying to explain why I think it would be not only lawful but right to let Anthony Bland die. In the course of doing so I shall also try to explain why the principles upon which this judgment rests do not make it a precedent for morally unacceptable decisions in the future.

To argue from moral rather than purely legal principles is a somewhat unusual enterprise for a judge to undertake. It is not the function of judges to lay down systems of morals and nothing which I say is intended to do so. But it seemed to me that in such an unusual case as this, it would clarify my own thought and perhaps help others, if I tried to examine the underlying moral principles which have led me to the conclusion at which I have arrived. In doing so, I must acknowledge the assistance I have received from reading the manuscript of Professor Ronald Dworkin's forthcoming book Life's Dominion and from conversations with him and Professor Bernard Williams.

I start with the concept of the sanctity of life. Why do we think it would be a tragedy to allow Anthony Bland to die? It could be said that the entire tragedy took place at Hillsborough and that the curtain was brought down when Anthony Bland passed into a persistent vegetative state. Until then, his life was precious to him and his family. But since then, he has had no consciousness of his life and it could be said to be a matter of indifference to him whether he lives or dies. But the fact is that Anthony Bland is still alive. The mere fact that he is still a living organism means that there remains an epilogue of the tragedy which is being played out. This is because we have a strong feeling that there is an intrinsic value in human life, irrespective of whether it is valuable to the person concerned or indeed to anyone else. Those who adhere to religious faiths which believe in the sanctity of all God's creation and in particular that human life was created in the image of God himself will have no difficulty with the concept of the intrinsic value of human life. But even those without any religious belief think in the same way. In a case like this we should not try to analyse the rationality of such feelings. What matters is that, in one form or another, they form part of almost everyone's intuitive values. No law which ignores them can possibly hope to be acceptable.

Our belief in the sanctity of life explains why we think it is almost always wrong to cause the death of another human being, even one who is terminally ill or so disabled that we think that if we were in his position we would rather be dead. Still less do we tolerate laws such as existed in Nazi Germany, by which handicapped people or inferior races could be put to death because someone else thought that their lives were useless.

But the sanctity of life is only one of a cluster of ethical principles which we apply to decisions about how we should live. Another is respect for the individual human being and in particular for his right to choose how he should live his own life. We call this individual autonomy or the right of self-determination. And another principle, closely connected, is respect for the dignity of the individual human being: our belief that quite irrespective of what the person concerned may think about it, it is wrong for someone to be humiliated or treated without respect for his value as a person. The fact that the dignity of an individual is an intrinsic value is shown by the fact that we feel embarrassed and think it wrong when someone behaves in a way which we think demeaning to himself, which does not show sufficient respect for himself as a person.

No one, I think, would quarrel with these deeply rooted ethical principles. But what is not always realised, and what is critical in this case, is that they are not always compatible with each other. Take, for example, the sanctity of life and the right of self-determination. We all believe in them and yet we cannot always have them both. The patient who refuses medical treatment which is necessary to save his life is exercising his right to self-determination. But allowing him, in effect, to choose to die, is something which many people will believe offends the principle of the sanctity of life. Suicide is no longer a crime, but its decriminalisation was a recognition that the principle of self-determination should in that case prevail over the sanctity of life.

I accept that the sanctity of life is a complex notion, often linked to religion, on which differing views may be held. The Jehovah's Witness who refuses a blood transfusion even though he knows this may result in his death, would probably not consider that he was sacrificing the principle of the sanctity of life to his own right of self-determination. He would probably say that a life which involved receiving a transfusion was so defiled as no longer to be an object of sanctity at all. But someone else might think that his death was a tragic waste and did offend against the sanctity of life. I do not think it would be a satisfactory answer to such a person to say that if he could only see it from the point of view of the Jehovah's Witness, he would realise that the principle of the sanctity of life had not been sacrificed but triumphantly upheld. Similarly it is possible to qualify the meaning of the sanctity of life by including, as some cultures do, concepts of dignity and fulfilment as part of the essence of life. In this way one could argue that, properly understood, Anthony Bland's death would not offend against the sanctity of life. But I do not think that this would satisfy the many people who feel strongly that it does. I think it is better to accept this and confront it.

A conflict between the principles of the sanctity of life and the individual's right of self-determination may therefore require a painful compromise to be made. In the case of the person who refuses an operation without which he will certainly die, one or other principle must be sacrificed. We may adopt a paternalist view, deny that his autonomy can be allowed to prevail in so extreme a case, and uphold the sanctity of life. Sometimes this looks an attractive solution, but it can have disturbing implications. Do we insist upon patients accepting life-saving treatment which is contrary to their strongly held religious beliefs? Should one force-feed prisoners on hunger strike? English law is, as one would expect, paternalist towards minors. But it upholds the autonomy of adults. A person of full age may refuse treatment for any reason or no reason at all, even if it appears certain that the result will be his death.

I do not suggest that the position which English law has taken is the only morally correct solution. Some might think that in cases of life and death, the law should be more paternalist even to adults. The point to be emphasised is that there is no morally correct solution which can be deduced from a single ethical principle like the sanctity of life or the right of self-determination. There must be an accommodation between principles, both of which seem rational and good, but which have come into conflict with each other.

It would therefore be in accordance with the English approach to resolving the conflict between the right of self-determination and the sanctity of life that if Anthony Bland were to be momentarily restored to consciousness with full knowledge that he would shortly revert to his persistent vegetative state, and if he were to instruct those caring for him that he no longer wanted artificially to be kept alive, the doctors and nurses would be obliged to respect his wishes. If he were to give such an instruction, I think that many would feel that his wishes be obeyed, not only because they were his wishes, but because (unlike the case of a person who for religious reasons refuses treatment which could restore him to vigorous health) his wishes were entirely understandable. The horror of his situation is such that few would not think it perfectly reasonable for him to decide that, as he had already lost all sense and consciousness, he would prefer to die.

In this case, however, Anthony Bland has not made such a decision and never will. Some people make it clear in advance that, if they should fall into a state which seems to them in anticipation to be intolerable, they do not want life-sustaining treatment to be continued. The right of self-determination entails that such wishes should be respected. Different jurisdictions have varying requirements about how clearly such wishes should be expressed. But Anthony Bland expressed none at all. There is nothing to show that in the course of his short life he gave the matter any thought. All that his family can say is that from their knowledge of him and his general attitude to life, the things that interested him and gave him pleasure, he would not have wanted to survive in his present state.

Does this mean that people who have not expressed their wishes in advance and are now incapable of expression must lose all right to have treatment discontinued and that those caring for them are in every case under a corresponding duty to keep them alive as long as medical science will allow? Counsel for the Official Solicitor said that this was so. If they have not chosen, the court has no right to choose on their behalf. I think that the fallacy in this argument is that choice cannot be avoided. To continue treatment is as much a choice as to discontinue it. Why is it not an act of choice to decide to continue to invade the privacy of Anthony Bland's body with tubes, catheters, probes and injections? If on account of his unconsciousness he is obliged to submit to such treatment, one cannot say that it is because the court is refusing to choose on his behalf. One way or the other, a choice is being made. It is only if one thinks it natural and normal to want treatment that continuing to provide it seems not so much a choice as a given state of affairs. And of course in most cases this would be true. In a case in which it was being said that a person should not be given treatment which would avoid death and restore him to full health, one would want to know that this was his personal choice and that it had been expressed very clearly indeed.

But Anthony Bland's is not a normal case. The continuation of artificial sustenance and medical treatment will keep him alive but will not restore him to having a life in any sense at all. It is necessary to emphasise the awful certainty of his fate. We all know of cases in which doctors have been mistaken and where people have recovered to live meaningful lives after being given over for dead. But no one has ever recovered any vestige of consciousness after being in a persistent vegetative state for more than a year. Anthony Bland has been in this state for more than three years. He has been examined by a number of the most eminent doctors and they are unanimous that there is no hope whatever of any consciousness being regained. They say that this is the worst case of irreversible cortex damage that they have seen. Nor is this a case in which one has to make an assessment of the quality of life which Anthony Bland has. We all know and admire people who suffer pain and disability, of whom many would think that in their position they would rather be dead, and yet who endure their lives and derive meaning and satisfaction from living. But the very concept of having a life has no meaning in relation to Anthony Bland. He is alive but has no life at all.

Counsel for the Official Solicitor argued that however vestigial Anthony Bland's life might be, one could not assume that he would choose to die. Being unconscious, he felt no pain or humiliation and therefore had no interests which suffered from his being kept alive. Anthony Bland was in fact indifferent to whether he lived or died and there was nothing to put in the balance against the intrinsic value of his life.

I think that the fallacy in this argument is that it assumes that we have no interests except in those things of which we have conscious experience. But this does not accord with most people's intuitive feelings about their lives and deaths. At least a part of the reason why we honour the wishes of the dead about the distribution of their property is that we think it would wrong them not to do so, despite the fact that we believe that they will never know that their will has been ignored. Most people would like an honourable and dignified death and we think it wrong to dishonour their deaths, even when they are unconscious that this is happening. We pay respect to their dead bodies and to their memory because we think it an offence against the dead themselves if we do not. Once again I am not concerned to analyse the rationality of these feelings. It is enough that they are deeply rooted in our ways of thinking and that the law cannot possibly ignore them. Thus I think that counsel for the Official Solicitor offers a seriously incomplete picture of Anthony Bland's interests when he confines them to animal feelings of pain or pleasure. It is demeaning to the human spirit to say that, being unconscious, he can have no interest in his personal privacy and dignity, in how he lives or dies.

Anthony Bland therefore has a recognisable interest in the manner of his life and death which can help the court to apply the principles of self-determination and the value of the individual. We can say from what we have learned of Anthony Bland from those closest to him that, forced as we are to choose, we think it is more likely that in his present state he would choose to die than to live. There is no suggestion that he was, for example, motivated by any religious principles which would have made him want his life in its present state prolonged. We can also say that in allowing him to die, we would be showing more respect to him as an individual than by keeping him alive.

Thus it seems to me that we are faced with conflicting ethical principles. On the one hand, Anthony Bland is alive and the principle of the sanctity of life says that we should not deliberately allow him to die. On the other hand, Anthony Bland is an individual human being and the principle of self-determination says he should be allowed to choose for himself and that, if he is unable to express his choice, we should try our honest best to do what we think he would have chosen. We cannot disclaim this choice because to go on is as much a choice as to stop. Normally we would unquestioningly assume that anyone would wish to live rather than die. But in the extraordinary case of Anthony Bland, we think it more likely that he would choose to put an end to the humiliation of his being and the distress of his family. Finally, Anthony Bland is a person to whom respect is owed and we think that it would show greater respect to allow him to die and be mourned by his family than to keep him grotesquely alive.

There is no formula for reconciling this conflict of principles and no easy answer. It does no good to seize hold of one of them, such as the sanctity of life, and say that because it is valid and right, as it undoubtedly is, it must always prevail over other principles which are also valid and right. Nor do I think it helps to say that these principles are all really different ways of looking at the same thing. Counsel appearing as amicus said that there was "no inherent conflict between having regard to the quality of life and respecting the sanctity of life; on the contrary they are complementary; the principle of sanctity of life embraces the need for full respect to be accorded to the dignity and memory of the individual. . . ." To my mind, this is rhetoric intended to dull the pain of having to choose. For many people, the sanctity of life is not at all the same thing as the dignity of the individual. We cannot smooth away the differences by interpretation. Instead, we are faced with a situation which has been best expressed by Sir Isaiah Berlin:

"The world that we encounter in ordinary experience is one in which we are faced with choices between ends equally ultimate, and claims equally absolute, the realisation of some of which must inevitably involve the sacrifice of others . . . The knowledge that it is not merely in practice but in principle impossible to reach clear-cut and certain answers, even in an ideal world of wholly good and rational men and wholly clear ideas - may madden those who seek for final solutions and single, all-embracing systems, guaranteed to be eternal. Nevertheless it is a conclusion that cannot be escaped by those who, with Kant, have learnt the truth that out of the crooked timber of humanity no straight thing was ever made." See Two Concepts of Liberty (1969), at pp. 168, 170.

In my view the choice which the law makes must reassure people that the courts do have full respect for life, but that they do not pursue the principle to the point at which it has become almost empty of any real content and when it involves the sacrifice of other important values such as human dignity and freedom of choice. I think that such reassurance can be provided by a decision, properly explained, to allow Anthony Bland to die. It does not involve, as counsel for the Official Solicitor suggested, a decision that he may die because the court thinks that his "life is not worth living." There is no question of his life being worth living or not worth living because the stark reality is that Anthony Bland is not living a life at all. None of the things that one says about the way people live their lives - well or ill, with courage or fortitude, happily or sadly - have any meaning in relation to him. This in my view represents a difference in kind from the case of the conscious but severely handicapped person. It is absurd to conjure up the spectre of eugenics as a reason against the decision in this case.

Thus in principle I think it would be right to allow Anthony Bland to die. Is this answer affected by the proposed manner of his death? Some might say that as he is going to die, it does not matter how. Why wait for him to expire for lack of food or be carried off by an untreated infection? Would it not be more humane simply to give him a lethal injection? No one in this case is suggesting that Anthony Bland should be given a lethal injection. But there is concern about ceasing to supply food as against, for example, ceasing to treat an infection with antibiotics. Is there any real distinction? In order to come to terms with our intuitive feelings about whether there is a distinction, I must start by considering why most of us would be appalled if he was given a lethal injection. It is, I think, connected with our view that the sanctity of life entails its inviolability by an outsider. Subject to exceptions like self-defence, human life is inviolate even if the person in question has consented to its violation. That is why although suicide is not a crime, assisting someone to commit suicide is. It follows that, even if we think Anthony Bland would have consented, we would not be entitled to end his life by a lethal injection.

On the other hand, we recognise that, one way or another, life must come to an end. We do not impose on outsiders an unqualified duty to do everything possible to prolong life as long as possible. I think that the principle of inviolability explains why, although we accept that in certain cases it is right to allow a person to die (and the debate so far has been over whether this is such a case) we hold without qualification that no one may introduce an external agency with the intention of causing death. I do not think that the distinction turns upon whether what is done is an act or omission. This leads to barren arguments over whether the withdrawal of equipment from the body is a positive act or an omission to keep it in place. The distinction is between an act or omission which allows an existing cause to operate and the introduction of an external agency of death.

What complicates this distinction, however, is another ethical principle which demands that we should show kindness and humanity to our fellow human beings. At the most basic level, this principle insists that we should, if we are able to do so, provide food and shelter to a human being in our care who is unable to provide them for himself. If someone allows a small child or invalid in his care to starve to death, we do not say that he allowed nature to take its course. We think he has committed a particularly wicked crime. We treat him as if he had introduced an external agency of death. It is the same ethical principle which requires doctors and hospitals to provide the patients in their care with such medical attention and nursing as they are reasonably able to give.

In the normal case there is no moral difference between violations of these two principles - the prohibition on violating the person and the positive duty to act with humanity towards the helpless. Starving a child to death is no different from giving him poison. But there are two distinctions between the prohibition on external violation and the duty to provide humane care and assistance. One distinction is that the duty to provide care - for example, to provide medical treatment -ceases when such treatment can serve no humane purpose. In cases when further treatment can prolong the life of the patient only for a short period and at the cost of great pain and suffering, the doctor is under no obligation to continue. Indeed, the duty to act with kindness and humanity points in the opposite direction. But the prohibition on violating the person is absolute. Whatever the patient's sufferings, no one is entitled to introduce an external agency of death. It was this prohibition which Dr. Cox violated by injecting Mrs. Boyes with potassium chloride. The debate over euthanasia centres on the agonising conflict which can arise when, as in that case, the duty to act with kindness and humanity comes into conflict with the absolute prohibition on the violation of the person. At the moment, English law unequivocally resolves this conflict by giving priority to the latter principle. This is not the place to debate whether this is the only morally or socially acceptable position. In the present case, no such issue arises. This is not a case about euthanasia because it does not involve any external agency of death. It is about whether, and how, the patient should be allowed to die.

It is, I think, the duty to act with kindness and humanity which leads people to say that, whatever may be the position about artificial medical treatment, it cannot be right to deny the patient food. The giving of food to a helpless person is so much the quintessential example of kindness and humanity that it is hard to imagine a case in which it would be morally right to withhold it. If it is right that Anthony Bland should be allowed to die, then refrain from giving antibiotics and let him be carried off by an infection. But do not allow him to starve.

American writers have referred to these qualms about denial of food as the "sloganism" and "emotional symbolism" of food. I do not think that one should make light of these deeply intuitive feelings, which derive, as I have said, from a principle of kindness which is a badge of our humanity. But like the principle of the sanctity of life, they cease to provide true guidance in the extreme case. It is of course hard to imagine a case in which it could be humane to deny food to a patient. But this case stretches the imagination. To deny someone food is wrong because it causes suffering and death. But Anthony Bland cannot suffer and his condition is such that it is right that he should be allowed to die. His interest in the manner of his death - and it is a very important one - is that it should not be distressing or humiliating. If therefore, withdrawal of nourishment would produce distressing symptoms of which Anthony Bland was unconscious but which were visible to the nursing staff and family, this would be a good reason for allowing him to die in some other way. But the medical evidence is that suitable sedation can prevent any untoward symptoms and that withdrawal of nourishment is the most gentle and controlled way in which to allow him to die.

Counsel for the Official Solicitor opened this appeal by saying that the President "had held that it was lawful for a doctor to starve his patient to death." This is emotive language and by that I do not mean that this is not a proper case for emotion. It certainly is. By emotive language I mean language which evokes emotional images which are false, which have no application to the present case. The use of the language is intended to evoke images of cruelty, suffering and unwelcome death. Such images have no part to play in arriving at an answer to the problem, already difficult enough, which this case presents to the court.

I said that there were two distinctions between the prohibition on violating the person and the duty to provide care and assistance. So far I have mentioned only one. The second is that while the prohibition on violation is absolute, the duty to provide care is restricted to what one can reasonably provide. No one is under a moral duty to do more than he can, or to assist one patient at the cost of neglecting another. The resources of the National Health Service are not limitless and choices have to be made. This qualification on the moral duty to provide care did not enter into the argument in this case at all. The Airedale N.H.S. Trust invited us to decide the case on the assumption that its resources were unlimited and we have done so. But one is bound to observe that the cost of keeping a patient like Anthony Bland alive is very considerable and that in another case the health authority might conclude that its resources were better devoted to other patients. We do not have to consider such a case, but in principle the allocation of resources between patients is a matter for the health authority and not for the courts.

I can deal with the authorities very shortly. The House of Lords decided in In re F. (Mental Patient: Sterilisation) [1990] 2 A.C. 1 that the duty of a doctor towards a patient who lacks mental capacity to express his own wishes (and has not expressed any at a time when he had such capacity) is to give or withhold treatment according to what appears to be the best interests of the patient. The best interests of the patient in my judgment embrace not only recovery or the avoidance of pain (neither of which apply to this case) but also a dignified death. On this issue I respectfully agree with the dissenting judgments of Handler J. in In re Conroy, 486 A.2d 1209 and Brennan and Stevens JJ. in Cruzan v. Director, Missouri Department of Health, 110 S.Ct. 2841. The patient's best interests would normally also include having respect paid to what seems most likely to have been his own views on the subject. To this extent I think that what the American courts have called "substituted judgment" may be subsumed within the English concept of best interests. On the other hand, cases involving minors like In re J. (A Minor) (Wardship: Medical Treatment) [1991] Fam. 33 show that full weight has to be given to the principle of the sanctity of life before deciding that a test of best interests justifies a decision to allow the patient to die. In my judgment, however, such a decision is justified here. I agree with what Sir Thomas Bingham M.R. and Butler-Sloss L.J. have said about the procedure to be followed in future cases.

Finally, I must deal with some aspects of the judgment of the President. As will be apparent, I am in agreement with the decision which he reached. But there are certain points in his judgment which may have given rise to concern. First, the judgment contains some discussion about whether the administration of liquid food through a tube can properly be called medical treatment. Some have felt that the issues in this case could not depend upon a semantic point like that. I agree. As I see it, there are only two ways in which it may be relevant to call the feeding medical treatment. They are to identify it as something upon which, first, the hospital can properly ask for the guidance of the court as to what it should do and secondly, the medical profession can properly express a view. Once one is clear about why the question is being asked, it does not matter whether one calls it medical treatment, nursing, care or anything else. There is in my view no distinction between medical treatment and other kinds of care for the purposes of deciding the central issue in this case. This brings me to the second point of concern. The President laid some emphasis upon the fact that according to professional medical opinion and the B.M.A.'s statement on ethics, ending artificial feeding would be in accordance with good medical practice. Some have felt concern at the suggestion that questions of whether patients should live or die should be decided according to what was thought to be good practice by the medical profession. Once again, I sympathise with this concern.

I do not think that the President was saying that the views of the medical profession should determine the legal and moral questions which I have discussed in this judgment. Nor do I think that the profession would be grateful to the court for leaving the full responsibility for such decisions in its hands. It seems to me that the medical profession can tell the court about the patient's condition and prognosis and about the probable consequences of giving or not giving certain kinds of treatment or care, including the provision of artificial feeding. But whether in those circumstances it would be lawful to provide or withhold the treatment or care is a matter for the law and must be decided with regard to the general moral considerations of which I have spoken. As to these matters, the medical profession will no doubt have views which are entitled to great respect, but I would expect medical ethics to be formed by the law rather than the reverse.

I should emphasise that this is not a case in which some past act on the part of a doctor is being called into question. If the issue was whether such an act had given rise to civil or criminal liability, the fact that the doctor has acted in accordance with responsible professional opinion would usually be determinative. But in this case the plaintiff hospital trust is seeking the opinion of the court as to whether future conduct will be lawful. It has invited the court to decide whether, on medical facts which are not in dispute, the termination of life-support would be justified as being in the best interests of the patient. This is a purely legal (or moral) decision which does not require any medical expertise and is therefore appropriately made by the court.

I would dismiss the appeal.

ORDER

Appeal dismissed.

No order as to costs.

Leave to appeal.

Crown Copyright acknowledged