A doctor is on trial for murder, having ceased to treat a patient who has been in a persistent vegetative state for three years. Discuss the legal issues that would face the court. (2000-2500 words)

With the support of his parents and the authorities of Airedale NHS Trust, they sought a declaration from the court to: “Lawfully discontinue all life-sustaining treatment and medical support measures designed to keep the patient alive in his existing persistent vegetative state including the termination of ventilation, nutrition and hydration by artificial means” and “ Any treatment given should be for the sole purpose of enabling the patient to end his life and die peacefully with the greatest dignity and the least of pain, suffering and distress.” Also if death were to occur then it should be considered natural as a PVS patient and the hospital, physician and others should not be held criminally liable. This decision was applied by the Official Solicitor who took this case to the House of Lords. The main argument was that discontinuing artificial feeding would mean that the doctor would be held liable for the patient’s murder. Homicide is in fact defined as “the killing of one human being by another” and in order to be liable for this you need to have caused the death. The issue at hand was whether a doctor can lawfully discontinue life sustaining treatment without which a patient in Anthony Bland’s condition will die?

Firstly, providing medical treatment to an adult of a sound mind, without his consent is unlawful as it constitutes to trespass of a person, in particular the crime of battery. This was the principle set out in Re F (Mental Patient: Sterilisation) (1990) 2 A.C. 1. Consent is critical and even thought discontinuation may cause the death, the patient’s liberty to accept or decline medical treatment should be respected. The patient can say that if he was ever in the position where, for example, he would be in the condition of PVS that he would not like to be given any form of medical treatment that would prolong his existence. In incidents where the patient is unconscious and has not consented, the doctor had a duty of care to do what would be in the best interest of the patient. In the case of Bolam v Friern Hospital Management Committee (1957) 1 W.L.R. 582 set out what is known as the Bolam test, which states that "If a doctor reaches the standard of a responsible body of medical opinion, he is not negligent". The question is that to what extent can a doctor owe a duty of care to his patient suffering from PVS. As per mentioned by Lord Wilkinson, the doctor holds no duty of case to a patient that can’t consent, when he is being kept alive by ‘intrusive medical care’. He also stated that if the treatment was of no benefit then it is unlawful and it may constitute to a battery. Therefore as there was no duty to prolong or maintain his life, Dr Howe would not in fact be liable for murder via omission. There would be discretion if Dr Howe in this case was prosecuted for murder as he was just following what is considered to be good medical practice.

One of the issues that arose from this case was whether providing hydration and nutrition can be considered to be ‘medical treatment’. Doctors and medical experts concluded that artificial nasogastric feeding is a type of medical treatment because it basically substitutes what has naturally failed. The prime purpose of medical treatment is to prevent illness, relieving pain etc all in all to benefit the patient. Without treatment it was imminent for Anthony to die and the doctors did what they had to do to prevent him from dying that was the beginning of the course of treatment. sound medical experts took the view that “if a P.V.S. patient shows no signs of recovery after six months, or at most a year, then there is no prospect whatever of any recovery”. So the question is whether it will be of any benefit to thereby continue treatment if there is no hope of improvement (re J. (A Minor) (Wardship:  Medical Treatment) [1991] Fam. 33).

It can be argued that the withdrawal of feeding can amount to unlawful killing which could make the doctor liable for murder. It is about distinguishing between what is an act (stopping treatment) and an omission (not continuing). And that the issue of Mens Rea does not arise. Not providing nutrients and hydration is not an act but an omission. And since there is not duty to provide nutrients and hydration there is no criminal liability. It was said that “the doctor is simply allowing his patient to die... as a matter of general principle an omission such as this will not be unlawful unless it constitutes a breach of duty to the patient”. Even thought the doctors can withdraw treatment to a patient suffering from PVS, they are not allowed to do anything that may positively kill the patient. It can be said that instead of depriving the patient of food and drink (in essence starve the patient) it might be better to administer a sedative drug. What doctors were doing by deciding not to give medical treatment in those circumstances is that they are going to cause his death and they are going to know that their failure to treat will cause his death, they know the consequences and are 100% certain. But this cannot be considered as the failure to perform a legal duty (Barber v. Superior Court of State of California (1983) 195 Cal.Rptr. 484). Whether you regard that as intending his death is difficult, the doctor’s cause of action is that he will not survive. That is, on the face of it, murder unless medical treatment which is seen to be in the best interest of the patient, given the quality of life and the nature that he is likely to lead, is lawful. The House of Lords said that it is lawful to cease to give medical treatment.  

Sanctity of life is a fundamental concept that acknowledges human life and religious beliefs. It’s the idea that “life is a gift from god and it should not be taken away by any human”. This principle in some ways seemed to be overlooked in the judgement that concerned the quality of life in terms of prolonging artificial feeding. Sanctity of life is about how the patient would be remembered to the contrary quality of life is more a less about the benefits of keeping the patient alive. Anthony had a manner in which he would like to be remembered by his family after his death; he held the idea that if the PVS patient is medically proven to suffer from PVS permanently, then there is no duty to maintain “life” by either feeding or medical treatment.  As it would not be in the patient’s best interest and that it would be unlawful to hold him criminally liable in if feeding or treatment was stopped as there is no breach in the duty.

Another ethical principle is self-determination which is allowing the patient to choose the way he wants to live his own life, such as the right to accept medical treatment or reject it. An advanced decision or living will should be made by an adult, when they have the capacity to accept or refuse treatment in the future. In the case of Anthony, he is unable to express his concerns but also it is said that the family can’t consent on his behalf as in the case of Re T (Adult: Refusal of Treatment) (1993) Fam 95 103. His father expressed his opinion that his son would “He certainly wouldn’t want to be left like he is”. However, the families view is important to take into account when looking at the case overall. It is clear that from his families perspective, the because of his present state Anthony would prefer to die and that in doing so we will be respecting him as an individual. These seem to be conflicting ethical principles as there is this idea that the in terms of sanctity of life, the doctors should not deliberately allow him to die but on the other hand that he should choice for himself whether to die or not. The decision should be primarily made on to do what is in his best interest.

In conclusion, I have based my research on the case of Airedale National Health Service Trust v Bland (1993) 1 All ER 821. By looking at the courts decisions, we can say the following. The fact that the patient is in a Permanent Vegetate State means that there are slim chances of recovery after a certain period of time which means that there is no benefit further prolonging the patient’s life. The decision to cease medical treatment is because it would be in the best interest for the patient to die as there is no reason to live. Because of his inability to consent and the fact that there is no duty held to him there has been no breach in the law. Therefore, I would conclude by saying that the doctor in charge will not be liable for the death of the patient and will not be prosecuted for the charge of murder.

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Bibliography:

Smith and Hogan, Criminal law, 10th edition, Oxford University Press, 2009

Lisa Dickson, Criminal Law Level 1, Pearson Custom Publication, 2011

Paquita de Zulueta and Francesco Carelli - , 2009

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