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Fairly Bland: an alternative view of a supposed new ‘Death Ethic’ and the BMA guidelines

Published online by Cambridge University Press:  02 January 2018

David Price
David Price*
Affiliation:
De Montfort University, Leicester
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Abstract

Recently in this journal John Keown attacked the BMA Guidance published on ‘Withholding and Withdrawing Life-prolonging Medical Treatment’, arguing that it was, fundamentally at odds with the sanctity of life doctrine as properly understood, condemning the intentional termination of individuals' lives. In riposte it is asserted that even this modified version of the doctrine cannot support a defensible moral or legal standard for decision-making here, being founded upon an excessive emphasis on the mental state of the clinician and an inappropriately narrow focus on the effects of the proposed treatment on the ‘health’ of the patient, as opposed to being primarily driven by the (best) interests of the patient. The attempt to divorce treatment decisions from broader evaluations of the net benefit or other otherwise able to be attained by the patient from such treatment, including the taking into account of the individual's handicapped state, accordingly fails. Acceptance of such reality is, at the least, the first step toward a common language for further dialogue even between those with polar opposite opinions in this sphere.

Type
Research Article
Information
Legal Studies , Volume 21 , Issue 4 , November 2001 , pp. 618 - 643
Copyright
Copyright © Society of Legal Scholars 2001

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References

1. Keown, J ‘Beyond Bland: a critique of the BMA guidance on withholding and withdrawing medical treatment’ (2000) 20 LS 66.Google ScholarPubMed

2. Withholding and withdrawing Life-Prolonging Medical Treatment: Guidance for decision making (London: BMJ Books, 2001). This second edition incorporates guidance on the Human Rights Act 1998, although the content remains substantially unaltered in its basics. All subsequent references are to the second edition, although the paragraphs are numerically the same as in the first; only page numbers differ.

3. Keown, Notably J ‘Restoring Moral and Intellectual Shape To The Law After Bland’ (1997) 113 LQR 481 Google ScholarPubMed; Keown, J and Gormally, L ‘Human Dignity, Autonomy and Mentally Incapacitated Patients: A Critique of Who Decides?’ (1999) 4 Web J Current Legal Issues Google Scholar; and Finnis, J ‘Bland Crossing the Rubicon?’ (1993) 109 LQR 329 Google ScholarPubMed.

4. Airedale NHS Trust v Bland (1993) 1 All ER 821.

5. He draws on the use of this expression by Lord Mustill in Airedale NHS Trust v Bland (1993) 1 All ER 821 at 885j.

6. This Bill received its Second Reading in the House of Commons on 28 January 2000 and went into Standing Committee on 9 February 2000. The Bill as amended in Standing Committee was debated, and new proposed amendments considered, on 14 April 2000. Despite being at the top of the Private Members' Bill list, it ultimately ran out of allotted parliamentary time. See also Morris, A ‘Easing the Passing: End of Life Decisions and the Medical Treatment (Prevention of Euthanasia) Bill’ (2000) Med LR 300.Google ScholarPubMed

7. The police investigated at least 60 incidents: see The Times, 26 March 1999.

8. It is, of course, already murder intentionally to kill another human being, but after Bland it is not always murder to omit to treat even where there is an intention to cause death thereby.

9. These two, together with Lord McColl of Dulwich, sent a letter to all MPs stating ‘This Bill is totally in line with the law and medical ethics as generally understood and accepted until 1993, and still very widely accepted’.

10. Keown, J ‘Courting Euthanasia? Tony Bland and the House of Lords’ (1993) 9 Ethics & Medicine 3 at 36Google Scholar. Peter Singer endorses Keown's historical appraisal and asserts that the Bland case has led to the ‘collapse of the traditional doctrine’: see Singer, P Rethinking Life and Death (Oxford: OUP, 1994) pp 64–80 Google Scholar.

11. Report of the Select Committee of the House of Lords on Medical Ethics (HL Paper 21-1 1993-94) para 237.

12. Keown, n 1 above, at 71.

13. Keown, n 3 above, at 485.

14. (2000) 4 All ER 961 at 1010d.

15. Keown, n 3 above, at 486.

16. Ibid.

17. Despite the remarks to the contrary made to the jury by Farquharson J in R v Arthur (1993) 12 BMLR 1.

18. (1981) 1 WLR 1421.

19. (1989) 2 All ER 782.

20. British Medical Association, n 2 above, para 1.2, p 3. It stated also that ‘It is the value of the treatment which is being assessed, not the value of the child’: para 14.2, p 33.

21. British Medical Association, n 2 above, para 14.2, p 32.

22. (1989) 2 All ER 782 at 7848.

23. (1998) 38 BMLR 1 (Fam Div).

24. Comment on Re D, in (1997) 5 Med LR 225 at 227.

25. Lord Donaldson stated that ‘As this court recognised in In re B, account has to be taken of the pain and suffering and quality of life which the child will experience if life is prolonged’ (1991) 2 WLR 140at 149.

26. House of Lords Select Committee, n 11 above, paras 252–254.

27. House of Lords Select Committee, n 11 above, para 255.

28. Royal College of Paediatrics and Child Health Withholding or Withdrawing Life Saving Treatments in Children: A Framework for Practice (London: Royal College of Paediatrics and Child Health, 1997). In addition were mentioned infants in pvs, and those in a ‘no chance’ (where treatment merely prolongs death without significant alleviation of suffering) or ‘unbearable’ (in the opinion of the child and/or family, further treatment is more than can be borne, in view of progressive and irreversible illness) situation.

29. Royal College of Paediatrics and Child Health, n 28 above, para 3.1.3, p 20.

30. Circuit Court for the County of Monroe in Indiana, 12 April 1982. The court held that the parents had the right to decline surgery for a tracheo-oesophageal fistula (rendering the baby unable to consume food normally), and the child died six days after birth as a consequence.

31. Interim regulations (which required notices to be displayed in health institutions) had been issued in March 1983, but these were successfully challenged in American Academy of Paediatrics v Heckler 561 F Supp 395 (DDC 1983) on the basis that the DHHS had ignored various requirements of the Administrative Procedures Act 1982 when promulgating them.

32. Although the final version stated that reasonable medical judgments in selecting among alternative courses of treatment would be respected.

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34. No 84-6211 (2nd Cir, 1984) cerf granted 105 S Ct 3475 (1985).

35. Thus, the law was to be enforced by state rather than federal agencies.

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38. Rhoden, n 33 above, at 1303.

39. Rhoden, n 33 above, at 1301.

40. See Arras, J ‘Ethical Principles for the Care of Imperiled Newborns: Toward an Ethic of Ambiguity’ in Murray, T and Caplan, A (eds) Which Babies Shall Live? (Clifton NJ: Humana Press, 1985) p 83 at 99.CrossRefGoogle Scholar

41. Arras, n 40 above, p 102.

42. N Fost ‘Putting Hospitals on Notice’ (1982) Hastings Center Report 5 at 7.

43. The s 504 regulations contained an exception for anencephalic newborns, but it has been observed that this was only by virtue of such (permanently unconscious) neonates being viewed as ‘dying’: see Rhoden, n 33 above, p 1301.

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47. Recognising this fact, the BMA Guidance counsels the administration of treatment where genuine doubt as to benefit exists, which may later be withdrawn if it does not in fact prove efficacious: see n 2 above, para 5.1, p 12.

48. Above n 11, pp 252–253.

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50. An expression coined by R Veatch and C Mason Spicer: see ‘Futile Care: Physicians Should not be Allowed to Refuse to Treat’ (1993) 74 Health Progress 22. The distinction between the two notions was explicitly adopted by the influential Appleton Conference guidelines, see ‘Developing Guidelines for Decisions to Forgo Life-Prolonging Medical Treatment’ (1992) 18 (Supplement) J Medical Ethics.

51. Dr Andrews considered the chance of surviving to discharge following CPR to be of the order of 13%: see (1996) 2 FLR 99 at 106.

52. See Commentary by A Grubb on the case in (1997) 5 (1) Med LR 104 at 106.

53. Airedale NHS Trusr LJ Bland (1993) 1 All ER 82 1 at 870f.

54. Keown, n 3 above, at 500.

55. Even the 1984 Child Abuse Amendments explicitly permitted treatment-limiting decisions with respect to chronically and irreversibly comatose individuals.

56. Keown, n 3 above, at 492

57. Ibid.

58. In Re C (a minor) (medical treatment) (1998) Lloyd's Rep Med 1, Sir Stephen Brown Preferred to a consultant paediatric neurologist's view that any further treatment would be futile in the light of the fact that it would not improve her quality of life and as her life expectancy was so short.

59. The 1984 Child Abuse Amendments included ‘virtually futile’ as well as ‘futile’ treatments in its excluded categories.

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62. Ibid.

63. Arras states ‘Unfortunately the “prolife” theorists… have failed to provide us with a set of conditions that all “dying” newborns must satisfy’: n 40 above, p 94.

64. (1989) 2 All ER 782 (CA).

65. Indeed, the court weighed the short life expectancy together with the child's massively handicapped state, consisting of a mixture of severe or permanent brain lesions, blindness, probable deafness and generalised spastic cerebral palsy of all four limbs: see (1989) 2 All ER 782 at 7868.

66. (1998) Lloyd's Rep Med I.

67. See also Re C (a baby) (1996) 2 FLR 43 and the very recent decision of the Family Division in Royal Wolverhampton Hospitals NHS Trust v B (2000) 2 FCR 76. This weighing in the balance was even more explicit in the judgment of Cazelet J in the High Court in A National Health Service Trust v D (2000) 55 BMLR 19 with respect to a 19- month-old boy suffering from an irreversible and worsening lung disease who had a ‘very short life expectancy’.

68. See Cranford, R and Gostin, L ‘Futility: A Concept in Search of a Definition’ (1992) 20(4) Law, Medicine and Health Care 307.Google ScholarPubMed

69. Moreover, the description ‘dying’ has often applied to patients eg with pvs or Tay-Sachs, who are manifestly not destined to die shortly. If the label is suitable then are we not all dying?

70. Keown, n 3 above, at 485.

71. Because a treatment could not be either ‘ordinary’ or ‘extraordinary’ in itself, in isolation from the circumstances of a specific individual, it was not long before it came to incorporate an appraisal of the benefits and burdens of a specific therapy to a particular patient.

72. Arras, n 40 above, p 91.

73. President's Commission for the Study of Ethical Problems in Medical and Biomedical and Behavioral Research Deciding to Forego Life-Sustaining Treatment (1983).

74. (1991) 2 WLR 140 (CA).

75. As Rhoden states ‘The Act speaks in terms of the treatment itself being humane or inhumane. But medical treatments, unless they are outmoded (like the use of leeches) and cause gratuitous pain, are not “humane” or “inhumane” in and of themselves any more than, taken in isolation, they are “ordinary” or “extraordinary”’: n 33 above, at 1314.

76. British Medical Association, n 2 above, para 3.4, p 8. Such a view is consistent inter alia with that of the American Medical Association.

77. (1993) 1 All ER 821 at 871b. In the Court of Appeal, Butler Sloss LJ. had preferred to describe it as ‘medical care’ on the basis that there was no material distinction between spoon-feeding and nasogastric feeding, see (1993) 2 WLR 3 16 at 343. The House of Lords Select Committee rejected any firm distinction between mandatory personal care and medical treatment which may sometimes be withheld, stating ‘The two are part of a continuum, and such boundary as there is between them shifts as practice evolves and particularly as the wider role of nursing develops’: n 11 above, para 257.

78. (1993) 1 All ER 821 at 860d.

79. In the Second Reading of her Bill, Ann Winterton MP stated that neither the giving of food and fluids by mouth or through a tube was artificial, and that both have ‘always been regarded as a basic human right’, HC Deb, 28 January 2000 (Part 1).

80. Finnis has doubted whether the classification of the delivery of hydration and nutrition by artificial means (ie the nasogastric tube) formed part of the ratio of the decision in Bland: n 3 above, at 331.

81. See discussion in Huxtable, R ‘Withholding and Withdrawing Nutritiod Hydration: the continuing (mis)adventures of the law’ (1999) 21(4) J Social Welfare and Family Law 339 at 349–350.CrossRefGoogle Scholar

82. See Ciment, J ‘Tube Feeding Bad for Patients with Dementia’ (2000) 320 BMJ 335.Google ScholarPubMed

83. Lamb, n 44 above, p 94.

84. Keown and Gormally, n 3 above, at 14.

85. It is appreciated that ‘dignity’ as a core value lacks discrete substance and should be linked to other principles: see Feldman, D ‘Human Dignity as a Legal Value - Part II’ (2000) PL 61 at 70.Google Scholar

86. It is stated to include ‘warmth, shelter, pain relief, management of distressing symptoms… hygiene measures (such as the management of incontinence) and the offer of oral nutrition and hydration’: see British Medical Association, n 2 above, para 3.3, p 6.

87. Keown, n 1 above, at 70.

88. For instance, the High Court in NHS Trust A v Mrs M and NHS Trust B v Mrs H (2001) Lloyd's Rep Med 28 apparently accepted the expert evidence that the withdrawal of artificial nutrition and hydration would cause neither pain nor discomfort to either of the patients concerned, who were in a pvs state, and specifically found that this could not constitute inhuman and degrading punishment within art 3 of the ECHR as neither patient was capable of experiencing or being in a state of physical or mental suffering. Moreover, in Bland Lord Goff stated that‘… it is clear from the evidence that no such pain or distress will be suffered by Anthony, who can feel nothing at all’: see [19931 1 All ER 821 at 871d.

89. Boyle asserts that if the burdens of continuing to feed and hydrate a patient in pvs are to function as a reason for finding that such withholding is morally permissible, then this can only be the burdens imposed upon others, ie the emotional impact upon carers and family and the financial costs to society: see Boyle, J ‘A case for sometimes tube-feeding patients in persistent vegetative state’, in Keown, J (ed) Euthanasia Examined (Cambridge: Cambridge University Press, 1995) p 189 at pp 195–196.CrossRefGoogle Scholar

90. See Kennedy, I and Grubb, A Medical Law: Text with Materials (London: Butterworths, 2nd edn, 1994) p 1230.Google Scholar

91. (1998) Lloyd's Rep Med I at 5.

92. Keown, n 3 above, at 485.

93. In Re A (children) (conjoined twins: surgical separation) (2000) 4 All ER 961, Ward and Brooke LJJ rejected the application of the doctrine in the context of the conjoined twin's predicament. Brooke LJ stated that‘… an English court would inevitably find that the surgeons intended to kill Mary’: at 1029, whilst Ward LJ said that the doctors would possess ‘murderous intent’: at 1012. However, it would appear that Robert Walker LJ endorsed its applicability in finding that there would be no intention to kill Mary, although apparently ignoring the clear import (and binding nature) of the authority of the House of Lords in Woollin (1998) 4 All ER 103 on the subject: at 1070.

94. HC Deb, 28 January 2000 (Parts 2 and 3).

95. Steinbock, B ‘The Intentional Termination of Life’ in Steinbock, B (ed) Killing and Letting Die (New Jersey: Prentice-Hall, 1981) p 69 at p 72.Google Scholar

96. Steinbock, n 95 above, p 73.

97. A Memorandum accompanying the Bill (drawn up by Professor Finnis) makes clear that there was no intention to include such instances within the prohibition.

98. It is uncertain how this interacts with the existing common law principles applicable to murder.

99. HC Deb, 28 January 2000 (Part 1).

100. Keown, n 1 above, at 71–72.

101. Keown, n 1 above, at 80. See also Wheat, K ‘The Law's Treatment of the Suicidal’ (2000) 8(2) Med LR 182 Google ScholarPubMed

102. See Price, D ‘Assisted Suicide and Refusing Medical Treatment: Linguistics, Morals and Legal Contortions’ (1996) 4(3) Med LR 270.Google ScholarPubMed

103. Secretary of State for Home Department v Robb (1995) 1 All ER 677.

104. Bouvia v Superior Court of Los Angeles County 225 Cal Rptr 297 (1986); Barber v Superior Court 195 Cal Rptr 484 (1983).

105. Above n 11, p 234.

106. Hume, D A Treatise on Human Nature III.iii, Selby-Bigge, L A (ed) (Oxford: Clarendon Press, 1888).Google Scholar

107. See Bayles, M ‘Character, Purpose, and Criminal Responsibility’ (1982) 1 Law and Philosophy 5.CrossRefGoogle Scholar

108. Duff, R ‘Choice, Character, and Criminal Liability’ (1993) 12 Law and Philosophy 345 at 380.CrossRefGoogle Scholar

109. Pellegrino asserts that ‘A virtue-based ethic is difficult to defend as the sole basis for normative judgments’: see Pellegrino, E ‘The Virtuous Physician and the Ethics of Medicine’ in Beauchamp, T and Walters, L (eds) Contemporary Issues in Bioethics (Belmont CA: Wadsworth Publishing Company, 1999) p 46 at 49.Google ScholarPubMed

110. See Beauchamp, T and Childress, J Principles of Biomedical Ethics (New York: Oxford University Press, 2nd edn, 1994) pp 62–69.Google ScholarPubMed

111. See Wadham, J and Mountfield, H Blackstone's Guide to the Human Rights Act 1998 (London: Blackstone Press, 1998) p 37.Google Scholar

112. It might even be decided that a patient was not ‘deprived of life’ by virtue of a decision to withhold or withdraw treatment, as was held by the New Zealand C A in Short W v Northland Health Ltd (1997) 50 BMLR 255 under a similar provision in the New Zealand Bill of Rights.

113. See n 88 above. Dame Butler-Sloss P held that the intentional deprivation of life envisaged a deliberate act and not an omission, and that there could be no duty to sustain life, arising from the additional obligation in art 2 to take positive steps to safeguard life, where such treatment was not in the patient's best interests. Article 3 was regarded as being inapplicable to insensate patients.

114. (2000) 55 BMLR 19 (Fam D). In fact there was no need for Cazelet J to express any firm view on either of these matters as the 1998 Act was not in force at the time.

115. (1995) 2 ILRM 401.

116. Similarly in other jurisdictions with such constitutional rights. See eg Cruzan v Director, Missouri Department of Health (1990) 497 US 261 (US SC).

117. In Re A (children) (conjoined twins: separation) (2000) 4 All ER 961, Ward LJ stated that vitalism was ‘too extreme a position to hold’: at 999j.

118. Gostin, n 61 above, at 38.

119. British Medical Association, n 2 above, p viii.

120. Dobson, R ‘Guidelines ignored on Resuscitation Decisions’ (1999) 319 BMJ 536 CrossRefGoogle ScholarPubMed. See also (1999) 33 J Royal College of Physicians 348.

121. Ebrahim, S ‘Do not resuscitate decisions: flogging dead horses or a dignified death?’ (2000) 320 BMJ 1155 at 1155.CrossRefGoogle ScholarPubMed

122. Presented to the House of Commons on 4 April 2000.

123. See ‘=Withdrawal of food supplement judged as misconduct=’ (1999) 318 BMJ 895.

124. British Medical Association, n 2 above, para 22.1, p 67.

125. In such cases there is also a duty to involve the courts. In Scotland there is no such obligation, but the Lord Advocate has stated that only where this has occurred will immunity from prosecution be ensured. As regards the effect of the Adults with Incapacity (Scotland) Act 2000 in this sphere and other related matters, see G Laurie and Mason, J ‘Negative Treatment of Vulnerable Patients: Euthanasia by any Other Name?’ (2000) JR 159.Google Scholar

126. British Medical Association, n 2 above, para 18.2, p 53.

127. In addition, guidelines should be followed in relation to the clinical assessment, and where these do not exist another senior clinician familiar with the condition should be consulted where there is doubt about the diagnosis or prognosis or where the health care team has limited experience of the condition: n 2 above, para 17.2, p46.

128. Gostin, n 61 above, at 41.

129. This is a part of Keown and Gormally's thesis, n 3 above, at 16–17. Regarding elective ventilation procedures, see Price, D Legal and Ethical Aspects of Organ Transplantation (Cambridge: Cambridge University Press, 2000) ch 5.Google Scholar

130. It is reported that many elderly patients have no access to physiotherapy and other services that could hasten their recovery from strokes, etc: see The Times, 21 June 2000. However, it is reported that the Alzheimers Society has supported the BMA Guidance: see http://www.web.bma.org.uk/public/polsre.

131. HC Deb, 28 January 2000 (Part 16). A recent report found that substandard care is received by individuals with Down's syndrome: see ‘Parents of people with Down's syndrome report suboptimal care’ (1999) 318 BMJ 687.

132. The Under-Secretary for Health, Yvette Cooper, stated that the Bill would ‘switch the focus from the rights and best interests of the patient to the purpose or one of the purposes of the doctors’: HC Deb, 28 January 2000 (Part 17).

133. Doyal, L ‘When Doctors Might Kill their Patients: The moral character of clinicians or the best interests of patients?’ (1999) 318 BMJ 1432 at 1432.CrossRefGoogle ScholarPubMed

134. See Price, D ‘Euthanasia, Pain Relief and the Doctrine of Double Effect’ (1997) 17 LS 323.Google Scholar

135. Gormally, L ‘Walton, Davies, Boyd and the legalization of euthanasia’ in Keown, n 89 above, p 113 at 119.Google Scholar

136. Keown and Gormally have stated that the value of human life transcends the value of individual autonomy: n 3 above, at 9.

137. Gormally, n 135 above, at 115.

138. Kluge, E W ‘Designated Organ Donation: Private Choice in Social Context’ (1989) 19(5) Hastings Center Report 10 at 11.CrossRefGoogle ScholarPubMed

139. Arras, n 40 above, pp 104, 108.

140. (2000) 4 All ER 961 at 1010.

141. (2000) 4 All ER 961 at 1010.

142. British Medical Association, n 2 above, para 3.1, p 6.

143. Gormally, n 135 above, at 117; Finnis, n 3 above, at 335.

144. Keown and Gormally, n 3 above, at 8.

145. British Medical Association, n 2 above, para 1.2, p 3.

146. My thanks to Professor Ronnie Mackay for commenting on a draft; the usual caveats apply.