Judgement Approves Mercy Killing
The new Human Rights Act was tested in the Family Division of the High Court by an application from two NHS Trusts in the case of two women in a 'permanent' vegetative state to have their assisted nutrition and hydration discontinued. (25th October 2000) Dame Elizabeth Butler-Sloss, President of the Family Division, said that such patients should continue to be allowed to die with dignity. As she had already given consent earlier in the month, the court was told that the women had since died peacefully.
Prior to 2nd October 2000 English domestic law was governed by the principles laid down in the speeches in the House of Lords in Airedale NHS Trust v. Bland. Those principles have now to be reconsidered in the light of the implementation of the European Convention on Human Rights Act into our domestic law by virtue of the Human Rights Act 1998.
Article 2 'Right to life' of that Act states:
(I) "Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law."
(2) Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary.
Three questions were posed to the judge relating to this Article. "Is a patient diagnosed as in the vegetative state alive ? Dame Elizabeth replied that as the brain stem remains intact the answer is clearly yes and Article 2 protects the patient in that respect.
To the submission that the withdrawal of treatment incorporates the intention of bringing about the patient's death or shortening of life the judge held that death was not caused by the act of another, but by the disease or injury that created the condition.
In response to the further question that, if withdrawal does not constitute an intentional deprivation, are the circumstances in Article 2 to be regarded as a positive obligation to provide life sustaining treatment, the judge maintained the phrase should be regarded as a negative obligation on the state; to refrain from taking life intentionally. And the learned judge pointed out there are limits to the extent of this obligation. The medical profession cannot treat patients who are competent without their consent. A competent patient has the absolute right to refuse 'artificial' nutrition and hydration even though such refusal would lead to his death. The incompetent, on the other hand, is treated according to his best interests a la Bland. When the best interests no longer justify it, the treatment, or as we would say basic care, can be withdrawn.
That the law is becoming stretched beyond average competence is evident when we learn that "although the intention in withdrawing 'artificial' nutrition and hydration in PVS cases is to hasten death, in my judgement the phrase 'deprivation of life' must import a deliberate act, as opposed to an omission by someone acting on behalf of the state ". We are back now to our old friends act and omission, the significance of which has been frequently discussed in these columns. It is repeated that death comes from the illness or injury and not from deprivation.
Another old friend that appears in the judgement and is applauded is the Bolam Test, for it is agreed that only that selected group of responsible doctors have the power of decision in these cases. They presumably are to be granted a positive obligation to give life sustaining treatment in circumstances where such treatment is in the best interests of the patient, but not an absolute obligation to treat if such treatment is futile. Futility and burdensomeness make their entries here and are to be welcomed as they open up future prospects for discussion.
In general the judgement demonstrates that in this area, English law is capable of repelling advances from the European Convention of Human Rights. We had certainly hoped for a better conclusion. Probably the main difficulty is the issue of whether nutrition and hydration are to be considered as treatment or basic care. That confusion exists among lawyers is evident from a quotation from Lord Browne Wilkinson in which he repeatedly refers to the issue as medical care rather than treatment.
The judgement finally considers torture.
Article 3 of the Act "Prohibition of Torture" states:
"No one shall be subjected to torture or to inhuman or degrading treatment or punishment".
Dame Elizabeth was asked by the counsel acting for Alert to consider whether the Article would be breached during the short period leading up to the death of the patient by the withdrawal of nutrition and hydration. She is satisfied that this article did not apply to this situation. In her view it is enough that the withdrawal was thoroughly and anxiously considered by a number of experts in the field of PVS and is in accordance with the practice of a responsible body of medical opinion; that it is in accordance with the best interests of the patients; and that, as the patients are insensate, they have no feelings and no comprehension of the treatment accorded to them.
The latter conclusion was reached despite the fact that the paper by Peter McCullough, 'Thirst in Relation to Withdrawal of Hydration' (CMQ February 1996) had been sent to the Official Solicitor shortly after its appearance and again recently by Alert during the present proceedings.