This article appears in the November 1999 edition of the Catholic Medical Quarterly
The Culture of Death
Talk given at the Symposium of the Guild of Catholic Doctors,
Southport, 24 April 1999
Those of you who have read the Popes wonderful Encyclical Evangelium Vitae, the Gospel of Life, will be familiar with the phrase "the Culture of Death" which the Holy Father uses several times. I quote one instance at paragraphs 27 and 28:
"The emergence, and ever more widespread development, of bio-ethics is promoting more reflection and dialogue: between believers and non-believers, as well as regarding fundamental issues pertaining to human life. This situation, with its lights and shadows, ought to make us all fully aware that we are facing an enormous and dramatic clash between Good and Evil, Death and Life, the "Culture of Life ". We find ourselves not only 'faced with but necessarily 'in the midst of 'this conflict; we are all involved and we all share in it, with the inescapable responsibility of choosing to be unconditionally pro-life."
Within this concept of the Culture of Death the Holy Father includes, at one end of the spectrum, abortion and, at the other, whatever the age of the subject, euthanasia.
Turning to the other end of the spectrum, euthanasia, I take as a basis the Popes definition in his paragraph 65:
"For a correct and moral judgement on euthanasia, in the first place a clear definition is required. Euthanasia in the strict sense is understood to be an act or omission" (please note the reference to omission) "which of itself, and by intention, causes death with the purpose of eliminating all suffering."
I am going to deal as fully as time will allow with the case of Tony Bland, one of the Hilisborough victims. I do so because that decision has made an appalling advance in the Culture of Death.
THE BOLAM CASE
I start with a case with which all civil lawyers are familiar, Bolam v Friern Hospital Management Committee (19571 W.L.R. 582). This was a civil action tried with a jury by McNail J., in 1957. His summing up and directions to the jury gave rise to what has become known as "the Bolam test". Mr. Bolam was claiming damages in respect of alleged negligence in the course of treatment he received during electroconvulsive therapy. The issue for the jury to decide was whether or not the practice followed by those who treated him was negligent. The judge put that issue to the jury thus:
"A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art."
This test has been accepted in all English Courts. It has sometimes been called the lemming test. It is interesting to note that on the very day on which the judge of first instance in the Bland case, Sir Stephen Brown, gave his judgement, the High Court of Australia in a case called Rogers v Whitaker, unanimously disapproved of the Bolam test, I would suggest rightly. There is no valid reason why the law should follow, and uncritically accept, a body of medical opinion which may be wrong. Please note that the Bolam test was propounded to enable an assessment to be made of the technique of medical practice. It concerns medical skills and was never intended to deal with medical ethics.
GIBBINS AND PROCTOR
I come now to the question of the duty of a person to provide food and fluid to a helpless individual in that person s care. The person owing that duty of care may be a relative or close associate, or may be a medical person.
In 1918, a man, Walter Gibbins, and his co-habitee, Edith Proctor, were tried and convicted of the murder of Gibbins seven year old daughter, Nelly. The child died of starvation. Gibbins and Proctor were both convicted of murder and sentenced to death (see R v Gibbins & Proctor 13 C.A.R. 134). The trial judge was Roche J. His summing up was fully approved by the Court of Criminal Appeal. It contained the following passage:
"If you think that one or other of these prisoners wilfully and intentionally withheld food from that child so as to cause her to weaken and to cause her grievous bodily injury as the result of which she died, it is not necessary for you to find that she intended, or he intended, to kill this child then and there. It is enough for you to find that he or she intended to set up such a set of facts by withholding food, or anything, as would in the ordinary course of nature lead gradually but surely to her death."
That statement of the law has never been questioned, nor so far as I know has it ever been suggested that it applies only to lay people having a duty of care and does not apply to medical people having a like duty of care.
"NURSING CARE ONLY"
I come now to a case some of you may remember, the trial of Dr. Leonard Arthur in 1981. The victim in that case was a baby boy, John Pearson. He was born with Down s Syndrome. He had a normal birth with no complications. However, his mother, poor soul; having heard that her baby was what in those days they called a "mongol" told her husband that she did not want him. This was reported to Dr. Arthur, the responsible physician. He wrote up this following note: "Parents do not want the child to survive. Nursing care only." He prescribed a drug, dihydrocodeine, to be administered four-hourly. The child was not fed save with a mixture containing this drug. He developed pneumonia. He received no medical treatment. He died.
Dr. Arthur did not give evidence on his own behalf. However a whole battery of medical witnesses gave evidence in support of his defence. One of them was Sir Douglas Black who was the current President of the Royal College of Physicians. Farquarson J., the trial judge, described him to the jury as a man "at the pinnacle of his profession ". He repeated to the jury the evidence given by Sir Douglas, including this passage:
"I say that it is ethical, in the case of a child suffering from Downs, and with a parental wish that it should not survive, to terminate life providing other considerations are taken into account such as the status and ability of the parents to cope in a way that the child could otherwise have had a happy life."
The mind boggles. Here was a man "having a considerable say in the ethics of his profession" saying that it is "ethical" - his word - to "terminate life" - his words - in the case of a Downs Syndrome child unwanted by its parents. These words are a far cry from the words I have quoted in the Gibbins and Proctor trial. However they were repeated to the jury, along with similar statements by other medical witnesses, without one word of criticism and with no adverse comment, by the trial judge.
Farquarson J. made no reference in his summing up to the Bolam test. Nevertheless it would seem that he was applying this test and was applying it to an ethical question. In effect he was saying to the jury that, if responsible medical opinion approves a medical practice whereby a Downs Syndrome baby, unwanted by its parents, is starved to death, this is unobjectionable.
The evidence of Sir Douglas Black and the other medical witnesses indicates that, at that time, 1981, the lives of handicapped children born with physical or mental defects - spina bifida, Downs Syndrome etc. - were being deliberately terminated. There is no reason to doubt that this practice is still followed in some hospitals. The Culture of Death has invaded and spread in the maternity wards of many of our hospitals and the words "nursing care only" have become a death sentence.
Against this background we may now consider the case of Tony Bland, [Airedale N.H.S. Trust v Bland, reported, at first instance, in the Court of Appeal and in the House of Lords at 19932 W.L.R. 316.] At the very outset I think I should express my belief that the nine judges who took part in deciding that case were, if not deceived, certainly misled, by the medical profession. One and all, they reached their decision on the basis of facts which were inaccurate. I will list them.
Firstly, there is the question of pain. All the judges were told, and they certainly accepted, that Tony Bland was insensate and could feel no pain. Thus both Sir Thomas Bingham, M.R. in the Court of Appeal, and Lord Goff in the House of Lords quoted the medical evidence as follows:
"The patient is incapable of voluntary movement and can feel no pain. He cannot taste or smell. 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." (Page 333 and Page 364A)
There are two comments about this evidence placed before the courts. The first is that Tony Blands brain was not a liquidified mass. On post mortem examination it was found that, whereas there was a measure of cerebral atrophy, in fact the brain weighed 1007 gms. as against a normal average weight of 1300 gms
The second, and more important, comment is this: although the judges were told, and believed, that Tony Bland was insensate and would feel no pain or distress as he slowly died from starvation and dehydration, there are strong grounds for believing that, as he was dying, he would have felt all the agonies of thirst that any dehydrated person feels. It has been known for nearly half a century that the hypothalamus, which is the part of the brain which enables a person in "persistent vegetative state" (P.V.S.) to breathe unaided as Tony Bland did, is the centre for the sensation of thirst. Dr. Peter McCullough, in a recently published paper in the C.M.Q., has collated the research that has taken place and concluded that someone in Tony Bland s condition, brain damaged but with an intact hypothalamus, will suffer all the pangs of thirst if deprived of hydration.
The second factual inaccuracy concerned the condition known as P.V.S. The judges were told, and accepted, that a person diagnosed as in P.V.S. has no hope of recovery or improvement of any kind.
However Dr. Keith Andrews has made a statistical study of 40 patients admitted to his rehabilitation unit at Putney. All 40 had been referred to this unit as being in P.V. S . Of these 40, 10 one quarter showed no sign of improvement and remained in P.V.S. However, 13 nearly one third - slowly emerged from P.V.S. The remaining 17 i.e. 42.5% made so much improvement that they were considered to have been misdiagnosed.
These statistics indicate that, when a diagnosis of P.V.S. has been made, that diagnosis may be wrong or, alternatively, even if it is correct, the possibility of some recovery, of some measure of improve ment, cannot be excluded. These alternative possi bilities do not appear to have been made clear to the judges in the Bland case. Indeed one wonders what their decision might have been had they known that four years after the death of Tony Bland, another Hillsborough victim, Andrew Devine, was to become able to communicate using a sensitive electric buzzer.
The final factual inaccuracy concerns medical treatment. The Declaration sought concerned the discontinuance of "medical treatment". Sir Stephen Brown in his judgement said that the court had before it "overwhelming medical evidence" that feeding by means of a naso-gastric tube (which is how Tony Bland was fed) is "medical treatment". The other judges who considered the matter agreed with him. Some might think that the insertion of a naso-gastric tube may be medical treatment (although this procedure is not invariably carried out by a doctor), but, if it is, the use of the inserted tube is ordinary nursing care and is not medical treatment. It is no more medical treatment than the holding of a feeding cup to the mouth of a sick or enfeebled patient, or the bottle feeding of a baby.
Indeed there is certainly not a consensus of opinion to the effect that naso-gastric tube feeding is medical care. Comparatively recently an Irish lady, Lucy Chamberlain, had her gastric tube removed so that those who cared for her might cease to feed and hydrate her. The Irish Medical Council considered this matter and made the following declaration:
"Tube feeding is a normal part of patient care; every human being is entitled to feeding and hydration, and this removal of a feeding tube to starve a patient to death offends against medical ethics and leaves any doctor who does so exposed to disciplinary charges".
The Irish Nursing Board also considered this case and agreed with the Medical Council. (See the May 1997 issue of "Broadsheet".) Our own Royal College of Nurses takes a similar view and says that "Nurses are responsible for feeding patients."
The foregoing three matters, namely the question of thirst in a P.V.S. patient, the real nature of the persistent vegetative state (whether it is properly diagnosed or, whether it is irreversible), and the classification of feeding by naso-gastric tube, show that the decision in the Bland case did not rest on a sound factual basis.
THE BOLAM TEST AND MEDICAL ETHICS
So much for the facts of the Bland case. Let us now consider the law that was applied in the case.
I have mentioned the "Bolam test" which in short is this: if a medical practitioner follows a practice common to a responsible section of the medical profession, he cannot be held guilty of professional negligence. It is a test that has been used to ascertain civil liability and is, or should be, no more than that.
However the Bland case concerned an ethical matter. Two of the judges appreciated this fully. Hoffman L.J. (now himself a Lord of Appeal) said in the final sentence of his judgement:
"This is a purely legal (or moral) decision which does not require any medical expertise and is therefore appropriately made by the court." (Page 359c)
The other judge, Lord Mustill said:
"The decision is ethical not medical and there is no reason in logic why on such a decision the opinion of doctors should be decisive." (Page 399H)
However, in one way or another seven judges all applied the Bolam test to what is plainly an ethical question. In effect they said that, if the medical profession, or a section of it, consider it good medical practice to starve to death a P.V.S. patient, then this is justification for doing so.
this is an abdication of judicial duty.
"THAT IS MURDER..."
Let us examine this more closely: if a child is born with Downs Syndrome, or spina bifida or cerebral palsy or with defects caused by thalidomide then, if the Bolam test is applied to what is plainly an ethical question, it becomes ethically correct to starve that child to death if it is a common practice to do so.
Remember the words in the Gibbins & Proctor murder case: if you "intend to setup a set of facts by withholding food or anything as would in the ordinary course of events lead gradually but surely to death" that is murder. Does the Bolam test mean that, if a body of doctors think it right (or, as Sir Douglas Black would put it, ethical) to starve to death a handicapped baby unwanted by its parents, then such a course does not amount to murder? Does the same principle apply to a patient in P.V.S?
The trouble is that the general public is being misled as to what is going on. Recently the Daily Mail carried the banner headline: "Mother in a coma wins right to die." A more appropriate headline would be: "Doctors win permission to starve to death woman in coma."
The Royal College of Physicians has laid down the criteria fora diagnosis of
P.V.S. One of the criteria is as follows:
"There shall be no volitional response to visual, auditory, tactile or noxious stimuli."
This woman would open her eyes at the sound of clapping. Therefore she was clearly not in P.V.S. One wonders how much she knew about the decisions that were being made about her.
So there you have it. We in this country are certainly sliding down a slippery slope. Our courts, having permitted a person whom they believe to be insensate and in an irreversible vegetative condition, to be starved to death, are now extending their Declarations to patients whose condition may not be irreversible, who are not insensate and therefore will almost certainly die in agony, and who may even be mentally aware of the death sentence passed upon them.
This is indeed the Culture of Death in full flower. It flourishes even more vigorously in Holland and is beginning to spread throughout Europe. As the Holy Father has said, we are in the midst of a conflict. We are all involved, and we have the inescapable responsibility of choosing to be unconditionally Pro-Life.
Gerard Wright QC is a practising barrister-at-law.