[1993] 1 All ER 821

Airedale NHS Trust v Bland

FAMILY DIVISION
SIR STEPHEN BROWN P

12, 13, 19 NOVEMBER 1992

COURT OF APPEAL, CIVIL DIVISION
SIR THOMAS BINGHAM MR, BUTLER-SLOSS AND HOFFMANN LJJ

1, 2, 3, 9 DECEMBER 1992

HOUSE OF LORDS
LORD KEITH OF KINKEL, LORD GOFF OF CHIEVELEY, LORD LOWRY, LORD
BROWNE-WILKINSON AND LORD MUSTILL

Robert Francis QC and M R Taylor (instructed by Penningtons, agents for W J M Lovel,

Harrogate) for the plaintiffs.
James Munby QC (instructed by the Official Solicitor) for the Official Solicitor as
guardian ad litem.
Anthony Lester QC and Stephen Richards (instructed by the Treasury Solicitor) for the
Attorney General as amicus curiae.
Cur adv vult
19 November 1992. The following judgment was delivered:

SIR STEPHEN BROWN P.

Anthony Bland became 21 on 21 September 1992 but for the past three and a half years
he has been totally unaware of the world around him. As a keen supporter of Liverpool
Football Club he was at the Hillsborough football ground on 15 April 1989. He was then
171/2. He was one of the victims of the disaster. He suffered a severe crushed chest
injury which gave rise to hypoxic brain damage. His condition rapidly deteriorated and
despite the intensive and heroic efforts of doctors and nurses he has remained ever since
in a state of complete unawareness. This is known to the medical profession as a
'persistent vegetative state'. Although his brain stem is intact he suffered irreparable
damage to the cortex. All the higher functions of Anthony Bland's brain have been
destroyed. There is no hope whatsoever of recovery or improvement of any kind. That is
the unanimous opinion of all the distinguished doctors who have examined Anthony
Bland.

Since 12 May 1989 he has been under the care of Dr J G Howe FRCP, a consultant
geriatrician at the Airedale General Hospital. Dr Howe has very considerable experience
of patients suffering from what is described as persistent vegetative state. After his
transfer to the Airedale General Hospital prolonged and persistent attempts were made to
revive Anthony Bland. The skilled hospital staff including senior physiotherapists
assisted by the parents and sister of Anthony Bland made exhaustive attempts to achieve
some sign of revival. Although Anthony Bland's body breathes and reacts in a reflex
manner to painful stimuli it
[1993] 1 All ER 821 at 825

is quite clear that there is no awareness on his part of anything that is taking place
around him. EEG and CT scans reveal no evidence of cortical activity. Indeed recent
scans which have been photographed and produced to the court show that there is more
space than substance in the relevant part of Anthony Bland's brain. There is simply no
possibility whatsoever that he has any appreciation of anything that takes place around
him. He is fed artificially and mechanically by a nasogastric tube which has been
inserted through his nose and down into his stomach. All the natural bodily functions
have to be operated with nursing intervention. He is fitted with a catheter which has
given rise to infection necessitating surgical intervention. It is to be noted that the
necessary surgical incision was made without any anaesthetic because Anthony Bland is
utterly devoid of feeling of any kind. He requires four to five hours' nursing attention by
two nurses every day. No complaint is made by the hospital authorities of the fact that
they have to allocate substantial resources to this particular case—that is not a factor
which has been prayed in aid of the course which the plaintiffs now seek to be allowed
to follow. By August 1989, supported by the opinion of Dr Michael Johnson, a
consultant neurologist of St James's University Hospital, Leeds, Dr Howe had reached
the clear conclusion that there was absolutely no hope of any improvement. He felt that
it would be appropriate to cease further treatment. This would involve withdrawing the
artificial feeding through the nasogastric tube and declining antibiotic treatment if and
when infection appeared. If this course were to be adopted then within some 10 to 14
days the lack of sustenance would bring an end to the physical functioning of the body of
Anthony Bland and he would in terms 'die'. The process would be that of 'starvation'.
This would be unpleasant for those who had to observe it but Anthony Bland himself
would be totally unaware of what was taking place.

In August 1989 Dr Howe got into touch with the Sheffield coroner who was responsible
for dealing with the fatal cases arising from the Hillsborough disaster. The coroner, who
is both medically and legally qualified, alerted Dr Howe to the risks which he considered
he might run if he took the proposed course of withdrawing treatment. The coroner
pointed out that as the law stood it was his understanding that Dr Howe would run the
risk of criminal proceedings if he took a course which brought to an end the existence of
Anthony Bland, even though that existence could be regarded as being wholly pointless.
He suggested that Dr Howe should consult his legal advisers. Heeding the warning of the
coroner Dr Howe did indeed consult legal advisers and as a result the Airedale NHS
Trust, which is responsible for administering the Airedale General Hospital, issued the
originating summons which is now before the court. This seeks declarations that the trust
and their responsible physicians may lawfully discontinue all life-sustaining treatment
and medical support measures designed to keep Anthony Bland alive in his existing
persistent vegetative state including the termination of ventilation, nutrition and
hydration by artificial means and that they may lawfully discontinue and thereafter need
not furnish medical treatment to Anthony Bland except for the sole purpose of enabling
Anthony Bland to end his life and die peacefully with the greatest dignity and the least of
pain, suffering and distress. The plaintiffs' action is fully supported by the parents and
family of Anthony Bland. Because Anthony Bland himself is wholly incapable of taking
any step with regard to this matter the Official Solicitor of the Supreme Court has been
appointed to act as his guardian ad litem. He has instructed counsel to appear on the
hearing of this summons. Whilst not disputing the completely insensate condition of
Anthony Bland, he opposes the plaintiffs' application, contending that if the action
proposed by Dr Howe and the plaintiff hospital authority were to be implemented it
would in terms amount in law to

[1993] 1 All ER 821 at 826

the crime of murder. Because of the public importance of this case the court invited the
assistance of the Attorney General and he has instructed counsel to appear as amicus
curiae.

This case clearly raises serious moral, medical and ethical issues. However, none of the
facts relating to the circumstances and the condition of Anthony Bland are in dispute.
The court has been assisted by expert medical evidence from witnesses of the highest
calibre and of the very greatest experience. All agree that Anthony Bland is now, and has
been ever since the date of the Hillsborough disaster, in what is known to the medical
profession now as a persistent vegetative state. The condition is irreversible and is not
susceptible of any improvement. He is completely insensate and no medical procedure or
treatment can bring about any beneficial change in his condition. All the witnesses have
stated that the standard of care which has been afforded to Anthony Bland at the
Airedale General Hospital is of the highest character. His parents have visited him daily
and his sister has also been present frequently. The anguish which they continue to
experience is self-evident. His father has given oral evidence before me and I also have a
statement from Anthony Bland's mother. The father is a splendid straightforward
Yorkshireman. He has faced the terrible tragedy which has befallen his family with
remarkable realism and dignity. He has not allowed emotion to influence his judgment.
He traced for me Anthony's brief life—explaining how he was a thoroughly normal boy.
He described him as not a very clever boy but with a good personality—sensitive and
willing. His great interest was football and Liverpool his chosen team. He said that he
was not religious but that he had attended Sunday School in the Church of England. His
assessment of Anthony Bland's situation was expressed in these clear terms:

'He certainly wouldn't want to be left like he is. I would feel that he
should be removed and the family feel the same. I was angry when the
advice from the coroner was received. I can see no point whatsoever in
continuing treatment.'

Of course Anthony Bland is unable to express views of his own and there had been no
occasion for him to express any view as to how he might view his situation if some
terrible tragedy such as this befell him.

This case raises for the first time in the English courts the question in what
circumstances, if any, can a doctor lawfully discontinue life-sustaining treatment
(including nutrition and hydration) without which a patient in Anthony Bland's condition
will die. Professor Bryan Jennett CBE, until recently Foundation Professor of
Neurosurgery at the Institute of Neurological Science in the University of Glasgow and
having the very widest experience as a neurosurgeon, was responsible together with
Professor Plum of New York for coining the term 'persistent vegetative state' in 1972. It
is intended to describe a syndrome that was being increasingly encountered as the life-
saving and life-sustaining technologies of intensive care were securing the survival of
some patients with brain damage of a severity that would previously have proved fatal.
Professor Jennett told the court that until this descriptive term was proposed, and soon
widely adopted, such patients were often referred to as being in a prolonged or
irreversible coma. However the word 'coma', he said, implies a continuing sleeplike state
due to depression of the brain stem activating systems—whilst the hallmark of the
vegetative patient is that after a variable time in coma wakefulness returns, with long
periods of spontaneous eye opening. This period in coma commonly lasts 10 to 21 days
after head injury which causes concussive depression of brain stem function, but after
hypoxic insults patients often begin to open their eyes in two

[1993] 1 All ER 821 at 827

to three days. Unlike less severely brain damaged patients emerging from coma, the
vegetative patient fails to regain any cognitive behaviour that would indicate function in
the cerebral cortex—the grey matter responsible for consciousness, thinking, feeling and
responding in meaningful (as distinct from reflex) ways to stimuli from the
surroundings. Because the brain stem and various other sub-cortical and more primitive
parts of the brain are still functioning, the vegetative patient has a wide range of reflex
activity, including breathing and, in some patients, a very limited capacity to swallow
reflexly. Vegetative patients must be distinguished from patients in a 'locked in'
syndrome—who, because of a focal lesion in the brain stem that does not affect
consciousness, are totally paralysed in limbs and speech but may communicate by a
yes/no code using eye or eyebrow movements. They are also quite different from
patients who have suffered 'brain death'—whose brain stem has permanently ceased to
function and who are dependent on a ventilator to maintain respiration, and whose heart
always stops within a week or two at the most. By contrast, vegetative patients have
suffered cognitive death, but can continue to breath for years because the brain stem is
still functioning. The key to the diagnosis is that, on clinical observation over a
prolonged period of time, there is no evidence of a working mind. EEG records show a
range of abnormal activity with severe depression of cortical activity obvious only in a
minority of cases. Professor Jennett referred to the very considerable research which has
taken place internationally and the consideration of the problem by the medical ethics
committee of the British Medical Association. He concluded from all the research
material that only exceptional cases have been reported as showing recovery after a year,
and none of those patients appear to have achieved independence. He gave it as his
opinion that nasogastric feeding is a form of 'medical treatment' just as is a ventilator or
a kidney machine. It is a means of substituting a function that has naturally failed. He
said that tube feeding is accepted as 'medical treatment' in the United States of America
and in Canada. He referred to the Appleton International Conference, which accepted
that life-sustaining hydration and nutrition is a medical treatment which may justifiably
be withdrawn from persistently vegetative patients for whom there are no patient-based
reasons for continuing to treat. He expressed the opinion that it has become accepted
good practice in this country as elsewhere to agree in consultation with the families of
the vegetative patients to withhold antibiotics and cardiopulmonary resuscitation in the
event of complications that would call for such measures in patients with a prospect of
recovery. He expressed the very strong view that it would be in accordance with good
medical practice in the case of Anthony Bland to withdraw the nasogastric artificial
feeding. He stated that he considered there to be no benefit in maintaining life-sustaining
treatment because he could see no prospect of recovery of cognitive function. He, like
the other expert medical witnesses who gave evidence before me, had examined
Anthony Bland. He stated that in his view this was an extreme and clear case of the
persistent vegetative state. He could see no benefit to the patient in continuing the
treatment of feeding by means of a nasogastric tube. Dr Cartlidge FRCP is the consultant
neurologist to the Newcastle Health Authority and senior lecturer in neurology at the
University of Newcastle-upon-Tyne. He has very considerable experience of the so-
called persistent vegetative state. He too examined Anthony Bland and expressed the
firm opinion that he was showing all the signs of this extreme condition. He said there is
no possibility whatsoever that he will recover. He too expressed the opinion that it would
be medically justifiable to withdraw the artificial feeding process for there was no useful
purpose in continuing it and it was not in the patient's best interests to prolong

[1993] 1 All ER 821 at 828

survival in these circumstances. Professor Peter Behan FRCP of the Department of

Neurology at the Institute of Neurological Sciences at the Southern General Hospital of
Glasgow was instructed by the Official Solicitor to examine Anthony Bland. The court
has the advantage of a report prepared by Professor Behan which has been accepted in
evidence. He was unable to attend court to give oral evidence. In his report he said:

'1) What is the diagnosis? This can be confidently answered that on the
basis of history, physical and neurological examination supplemented by
laboratory data, this is a classical example of the persistent vegetative
state …

2) I am confident that from my knowledge of other patients,

neurophysiology, previous cases from the literature and from animal
experimentation that the patient has no awareness nor can he suffer pain
or experience pleasure …

3) The prospect of improvement can also confidently be answered since

based on what we know of the degree of damage to his brain, the
comparison of his case with those recorded in the literature (particularly
considering the nature of his damage and the duration of his illness) and
the type of symptoms and signs he exhibits, there is no hint or hope or
any prospect of improvement.

4) In my opinion artificial feeding and hydration constitutes medical

treatment. If a patient was to be admitted under my care and was for one
reason or another unable to feed himself, the setting up of a nasogastric
tube for feeding and hydration would constitute beyond any measure of
doubt medical treatment as opposed to normal feeding.'

He further stated that he was very impressed by the recommendation of the British
Medical Association, that is to say in respect of the consultation and treatment of
patients in the persistent vegetative state, which seemed to him to be a recommendation
that where the diagnosis had been well established, the differential diagnoses had been
ruled out and all the necessary laboratory tests done, then 'the prognosis could
confidently be given as zero if after one year there was no sign of improvement'.

Dr Keith Andrews FRCP is the Director of Medical Research Services at the Royal
Hospital and Home, Putney. At his hospital there is a 20-bed brain injury rehabilitation
unit. Dr Andrews has had experience of about 50 patients in a persistent vegetative state.
He examined Anthony Bland. He told the court: 'I regard [him] as being in persistent
vegetative state and indeed … the most severe case … I have seen … I do not consider
that Tony Bland will make any recovery whatsoever.' He went on to say that if the
regime continues as at present 'he is likely to survive a few years … not more than about
five, mainly because he … is very prone to develop infections …' He expressed the view
that feeding by tube was not in his view medical treatment. In amplification he said: 'The
use of the equipment might be thought to be medical treatment but not the supply of food
which is a basic human requirement.' He said he would not favour the withdrawal of
treatment because he would find the means of death worrying. It would be distressing to
watch, although Anthony Bland himself would not experience any sensation. He agreed
that sedative drugs could be given to lessen the unpleasant features which he felt would
inevitably follow from the withdrawal of the artificial feeding.

The plaintiffs' submissions have been put clearly and succinctly by Mr Francis QC both
in a written skeleton argument and also in oral submissions. He submits that it is the
unanimous opinion of all the expert medical witnesses that Anthony Bland is in a severe
persistent vegetative state. There is no hope of any improvement. His parents with
knowledge of their son say that he would not wish his present condition to be continued.
Although Anthony Bland himself

[1993] 1 All ER 821 at 829

cannot express any view it should be inferred in the light of the medical evidence as well
as of the evidence of his own father and mother that the prolongation of the present
treatment is not in his best interests. Good medical practice, accepted by a large and
responsible body of medical opinion, suggests that the course proposed by Dr Howe, and
supported by Professor Jennett and by Dr Cartlidge, should be followed. Mr Francis
referred to a passage in the speech of Lord Bridge in the leading case of F v West
Berkshire Health Authority (Mental Health Act Commission intervening) [1989] 2 All
ER 545 at 548–549, [1990] 2 AC 1 at 52 where he said:

'Moreover it seems to me of first importance that the common law should

be readily intelligible to and applicable by all those who undertake the
care of persons lacking the capacity to consent to treatment. It would be
intolerable for members of the medical, nursing and other professions
devoted to the care of the sick that, in caring for those lacking the
capacity to consent to treatment, they should be put in the dilemma that, if
they administer the treatment which they believe to be in the patient's best
interests, acting with due skill and care, they run the risk of being held
guilty of trespass to the person, but, if they withhold that treatment, they
may be in breach of a duty of care owed to the patient. If those who
undertake responsibility for the care of incompetent or unconscious
patients administer curative or prophylactic treatment which they believe
to be appropriate to the patient's existing condition of disease, injury or
bodily malfunction or susceptibility to such a condition in the future, the
lawfulness of that treatment should be judged by one standard, not two. If
follows that if the professionals in question have acted with due skill and
care, judged by the well-known test laid down in Bolam v Friern Hospital
Management Committee [1957] 2 All ER 118, [1957] 1 WLR 582, they
should be immune from liability in trespass, just as they are immune from
 liability in negligence.'

It is acknowledged that the present case is not a similar situation to that of the mental
patient in F v West Berkshire Health Authority. There is no curative or therapeutic
treatment which can be applied to Anthony Bland. However, Mr Francis submits, the
same basic principles should be followed because what is proposed by Dr Howe is
effectively medical treatment and it is in the patient's best interests. He submits that it
would be intolerable if Dr Howe were to be put at risk of a prosecution for murder if he
were to follow what he submits is generally regarded now as good medical practice.

In his detailed and erudite submission Mr Munby QC on behalf of the Official Solicitor
challenged the view that the artificial feeding regime could be considered as 'medical
treatment'. He sought support for that submission from the evidence of Dr Keith
Andrews. However, his principal submission was that what is proposed by Dr Howe is
the doing of an act intended to lead to the death of Anthony Bland. In the result, he
argued, the withdrawal of the feeding regime would amount to unlawful killing and
would in fact be the crime of murder. He referred to the summing up of Devlin J in R v
Adams (Bodkin) [1957] Crim LR 365. He picked out a phrase used by the learned judge,
'cutting the thread of life'. Mr Munby argued that even if the artificial feeding process
were to be considered to be medical treatment it would nevertheless be unlawful in the
instant case to withdraw that treatment. He referred to what Lord Donaldson MR
described as the 'critical equation' in Re J (a minor) (wardship; medical treatment) [1990]
3 All ER 930 at 938, [1991] Fam 33 at 46. That case concerned the consideration of
potential further treatment to a severely brain damaged child. The problem raised in the
case was what should be done if the child should suffer another

[1993] 1 All ER 821 at 830

collapse, which might occur at any time. Should resuscitative treatment be given in such
a case? Mr Munby, relying upon a passage in the judgment of Lord Donaldson MR,
submitted that because of the very strong presumption which exists in favour of
preserving life a withholding or withdrawing of treatment could only be justified in the
critical case where the pain and suffering likely to be suffered by the patient exceeded
the benefit to the patient of preserving life. Lord Donaldson MR said ([1990] 3 All ER
930 at 938, [1991] Fam 33 at 46):

'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. As this
court recognised in Re B [Re B (a minor) (wardship: medical treatment)
(1981) [1990] 3 All ER 927, [1981] 1 WLR 1421], account has to be
taken of the pain and suffering and quality of life which the child will
experience if life is prolonged. Account has also to be taken of the pain
and suffering involved in the proposed treatment itself … But in the end
there will be cases in which the answer must be that it is not in the
interests of the child to subject it to treatment which will cause increased
suffering and produce no commensurate benefit, giving the fullest
 possible weight to the child's, and mankind's, desire to survive.'

In this case however, said Mr Munby, there is no question of suffering because Anthony
Bland is totally without feeling or awareness. He went on to speak of 'the slippery slope'
which would be embarked upon if the court were to make a declaration in the terms
sought by the plaintiffs: a dangerous precedent would be established. He developed in
depth his submission that there is an absolute prohibition upon a doctor against taking
active steps designed to bring about death. He likened the situation to that of two
climbers roped together where one climber deliberately cut the rope which bound his
companion to himself, or to switching off an iron lung.

Mr Anthony Lester QC, instructed by the Attorney General to appear as amicus curiae,
made submissions which in effect supported the plaintiffs' case. He acknowledged that
the subject matter of this case is obviously emotive and difficult. He said that the court
would not be assisted by an absolutist or dogmatically legalistic approach. It was not a
so-called euthanasia case; it was in terms a case about whether in the view of the doctors
and the court a particular treatment decision should be taken which would remove the
artificial support for life and allow nature to take its course so that death supervenes. He
submitted that the law should strive to be in accordance with contemporary medical
ethics and good medical practice. He acknowledged that Anthony Bland's case is
difficult because, at first sight, it seems to require the court to reject the vital principle of
the sanctity of life in favour of value judgments as to the quality of the further artificial
prolongation of the life of Anthony Bland. He submitted however that there is 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 human being. The meaning and, criteria of quality of life should focus on
benefit to the patient. He contended that Anthony Bland had an interest in the way in
which his family would remember him after his death and in the manner of his dying and
submitted that where one could be medically sure on all the evidence that the patient in a
persistent

[1993] 1 All ER 821 at 831

vegetative state is suffering permanently from loss of consciousness, there is no legal

duty to maintain what remains of his or her 'life' whether by feeding or by giving
medication. It is not in the patient's best interests to do so. In those circumstances he
submitted there would be no breach of duty or criminal liability in ceasing to feed or
otherwise to treat the patient. Such a conclusion, he argued, is in accordance with
existing English case law. If the court declared the treatment proposed by Dr Howe to be
'lawful' then he said the criminal law would not become involved because a basic
element of criminal liability, that is to say an unlawful act (the actus reus) is not made
out.

It is correct that there has been no previous case of this nature in this jurisdiction. Mr
Lester referred to a case before the Supreme Court of the United States, Cruzan v
Director, Missouri Dept of Health (1990) 110 S Ct 2841. The headnote of the report
reads:

'Guardians of patient in persistent vegetative state brought declaratory

 judgment action seeking judicial sanction of their wish to terminate
artificial hydration and nutrition for patient. The Circuit Court, Jasper
County, Probate Division, Charles E. Teel Jr., J., directed state employees
to cause request of guardians to be carried out. Appeal was taken. The
Missouri Supreme Court reversed. Certiorari was granted. The Supreme
Court, Chief Justice Rehnquist, held that: (1) the United States
Constitution did not forbid Missouri from requiring that clear and
convincing evidence of an incompetent's wishes to the withdrawal of life-
sustaining treatment; (2) state Supreme Court did not commit
constitutional error in concluding that evidence adduced at trial did not
amount to clear and convincing evidence of patient's desire to cease
hydration and nutrition; and (3) due process did not require state to accept
substituted judgment of close family members absent substantial proof
that their views reflected those of patient.'

The decision therefore turned on a constitutional point as to the jurisdiction of the State
of Missouri. However, in dissenting judgments Brennan J and three other justices
referred to what may be regarded as the substantive merits of the case with regard to the
treatment of patients in a persistent vegetative state. Mr Lester referred to passages in the
judgments of Brennan and Stevens JJ. He drew attention to a passage (at 2883):

'Medical advances have altered the physiological conditions of death in

ways that may be alarming: highly invasive treatment may perpetuate
human existence through a merger of body and machine that some might
reasonably regard as an insult to life rather than as its continuation. But
those same advances, and the reorganization of medical care
accompanying the new science and technology, have also transformed the
political and social conditions of death: people are less likely to die at
home, and more likely to die in relatively public places, such as hospitals
or nursing homes. Ultimate questions that might once have been dealt
with in intimacy by a family and its physician have now become the
concern of institutions.'

Stevens J observed (at 2886–2887):

'But for patients like Nancy Cruzan, who have no consciousness and no
chance of recovery, there is a serious question as to whether the mere
persistence of their bodies is “life” as that word is commonly understood
… The State's [Missouri's] unflagging determination to perpetuate Nancy
Cruzan's physical existence is comprehensible only as an effort to define
life's

[1993] 1 All ER 821 at 832

meaning, not as an attempt to preserve its sanctity … In any event, absent

some theological abstraction, the idea of life is not conceived separately
from the idea of a living person.' (Stevens J's emphasis.)

Brennan J used a phrase (at 2864) to which Mr Lester also pointed when he described
the subject in that case as 'a passive prisoner of medical technology'.

Mr Lester also drew attention to the Canadian Law Reform Commission Working Paper
of July 1983. I do not need to comment in detail upon it but in it the Law Reform
Commission of Canada recommended that the cessation of life-sustaining treatment in
such cases should not attract criminal liability. There are a number of other decisions of
state courts in the United States in which applications for a declaration, or for leave to
withdraw life-sustaining treatment have been granted. However they are not strictly
comparable to cases in this jurisdiction because many of them import a consideration of
parens patriae in the particular states.

In the present case there is no question but that Anthony Bland is in a condition known
as the persistent vegetative state. He has no feeling, no awareness, nor can he experience
anything relating to his surroundings. To his parents and family he is 'dead'. His spirit
has left him and all that remains is the shell of his body. This is kept functioning as a
biological unit by the artificial process of feeding through a mechanically operated
nasogastric tube. Intensive attention by skilled nurses assists the continuation of the
existence of the body. It is a desperately tragic situation both for what remains of
Anthony Bland and for the devoted members of his family. The doctor having the
responsibility for the care of Anthony Bland has come to a very clear medical
conclusion. He is supported in his assessment and opinion by doctors of unrivalled
experience and professional standing. They say in terms that it is in accordance with
good medical practice and in accordance with the true benefit to Anthony Bland himself
that the artificial feeding regime should be withdrawn. The Official Solicitor has made
clear to the court the possible implications of a precedent being established by a decision
in favour of the plaintiffs in this case, although such a decision would accord with
decisions taken in other common law jurisdictions.

The court must consider this case in the light of its particular facts and upon the
principles of law obtaining in this jurisdiction. In my judgment the provision of artificial
feeding by means of a nasogastric tube is 'medical treatment'. The court has before it
overwhelming medical evidence which supports this view. I accept it. The clinical
judgment of Dr Howe is to the effect that it would be in the best interests of Anthony
Bland for that artificial feeding regime to be withdrawn at this stage. He has cogently
given his reasons for reaching that conclusion. After three and a half years he has not
lightly made that decision. It is a clinical decision arrived at in the honest and
responsible exercise of his duty of caring for his patient. The fact that Anthony Bland's
existence will terminate does not in my judgment alter the reality that the true cause of
death will be the massive injuries which he sustained in what has been described as the
Hillsborough disaster. I am satisfied that there is no reasonable possibility of Anthony
Bland ever emerging from his existing persistent vegetative state to a cognitive sapient
state. I am satisfied that there is no therapeutic, medical or other benefit to Anthony
Bland in continuing to maintain his ventilation, nutrition and hydration by artificial
means. I am further satisfied that to discontinue the same would accord with good
medical practice as recognised and approved within the medical profession and finally
that the order that I propose to make is in the circumstances in the best interests of
Anthony Bland. His parents and sister concur in the making of the order which I propose
to make and I therefore declare that despite

[1993] 1 All ER 821 at 833

the inability of Anthony Bland to consent thereto the plaintiffs and the responsible
attending physicians: (1) may lawfully discontinue all life-sustaining treatment and
medical support measures designed to keep Anthony Bland alive in his existing
persistent vegetative state including the termination of ventilation, nutrition and
hydration by artificial means; and (2) that they may lawfully discontinue and thereafter
need not furnish medical treatment to Anthony Bland except for the sole purpose of
enabling Anthony Bland to end his life and to die peacefully with the greatest dignity
and the least distress.

I do not consider it appropriate to make any declaration with regard to any possible
consequences so far as the criminal law is concerned. In my judgment the declaration
that the course proposed is lawful is sufficient to give to the doctors and to the hospital
the necessary assurance as to the lawfulness of what is proposed. There will of course be
liberty to apply in the event of there being any material change in the existing
circumstances before the withdrawal of the artificial feeding. May his soul rest in peace.

It is understandable that those who are concerned with patients in the persistent
vegetative state should seek assistance as to the appropriate practice in the future.
Because of the gravity of the decision and the likely possible variation in the facts of
individual cases I consider that the approval of the court should be sought in cases of a
similar nature. In accordance with the procedures indicated by Lord Brandon of
Oakbrook in F v West Berkshire Health Authority [1989] 2 All ER 545 at 558, [1990] 2
AC 1 at 65 the appropriate procedure should be by a summons for a declaration made to
the Family Division of the High Court. The Official Solicitor should in my judgment be
invited to act as the guardian ad litem of the patient, which would guarantee the fullest
possible investigation of all the facts and circumstances of the individual case. Although
essentially the decision is one for the clinical judgment of responsible medical
practitioners, in my judgment it is desirable as a safeguard and for the reassurance of the
public that the court should be involved in the way that I have indicated. I would expect
that in all similar applications there would be not merely one medical opinion but at least
two responsible medical opinions. Further, the position of the members of the family is
very important. It may be that there will be cases where there is a division of opinion
among members of a family. In such cases it would be essential in my judgment for
responsible medical carers to seek the authority of the court.

Declarations accordingly. No order as to costs.

Bebe Chua Barrister.
Appeal

The defendant, acting by the Official Solicitor as his guardian ad litem, appealed from so
much of the order as declared that, despite the inability of the defendant to consent
thereto, the plaintiffs and the responsible physicians (1) might lawfully discontinue all
life-sustaining treatment and medical support measures designed to keep the defendant
alive in his existing persistent vegetative state, including the termination of ventilation,
nutrition and hydration by artificial means and (2) might lawfully discontinue and
thereafter need not furnish medical treatment to the defendant except for the sole
purpose of enabling him to end his life and to die peacefully with the greatest dignity and
the least distress.
James Munby QC (instructed by the Official Solicitor) for the Official Solicitor as
guardian ad litem.
Robert Francis QC and M R Taylor (instructed by Penningtons, agents for W J M Lovel,
Harrogate) for the plaintiffs.
[1993] 1 All ER 821 at 834
Anthony Lester QC and Pushpinder Saini (instructed by the Treasury Solicitor) for the
Attorney General as amicus curiae.

At the conclusion of the argument the appeal was dismissed and leave to appeal to the
House of Lords was granted for reasons to be given later.

9 December 1992. The following judgments were delivered.

SIR THOMAS BINGHAM MR.

Mr Anthony David Bland, then aged 171/2, 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 (PVS).

PVS is a recognised medical condition quite distinct from other conditions sometimes
known as 'irreversible coma', 'the Guillain-Barré 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
PVS 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 PVS 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. Urino-genitary 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 has, 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

[1993] 1 All ER 821 at 835

constantly tended. The patient must be repeatedly moved to avoid pressure sores.
Without skilled nursing and close medical attention a PVS 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 NHS Trust as plaintiff 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 AB [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 AB
except for the sole purpose of enabling AB 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 is 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: see F v West
Berkshire Health Authority (Mental Health Act Commission intervening) [1989] 2 All
ER 545, [1990] 2 AC 1. (3) A medical practitioner must comply with clear instructions
given by an adult of sound mind

[1993] 1 All ER 821 at 836

as to the treatment to be given or not given in certain circumstances, whether those

instructions are rational or irrational: see Sidaway v Bethlem Royal Hospital Governors
[1985] 1 All ER 643 at 665–666, [1985] AC 871 at 904–905 and Re T (adult: refusal of
medical treatment) [1992] 4 All ER 649, [1992] 3 WLR 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 F v West Berkshire Health Authority. (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: see Re B (a
minor) (wardship: medical treatment) (1981) [1990] 3 All ER 927, [1981] 1 WLR 1421,
Re B (a minor) (wardship: sterilisation) [1987] 2 All ER 206, [1988] AC 199, Re C (a
minor) (wardship: medical treatment) [1989] 2 All ER 782, [1990] Fam 26 and Re J (a
minor) (wardship: medical treatment) [1990] 3 All ER 930, [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
PVS 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 Re B (a minor) (wardship: medical treatment). If the ratio of Re J (a
minor) (wardship: medical treatment) is sound, an issue expressly reserved by Mr
Munby QC (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 Re
B (a minor) (wardship: medical treatment) and Re J (a minor) (wardship: medical
treatment). 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 PVS 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 the 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
and (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

[1993] 1 All ER 821 at 837

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 PVS 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 US 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 Clarke v Hurst (30 July 1992, unreported) there was evidence
of a PVS 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-Barré syndrome
who had expressed no wishes concerning his treatment: see Auckland Area Health Board
v A-G [1993] 1 NZLR 235. Thomas J delivered a comprehensive oral judgment in the
course of which he said (at 250):

'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 Re J (a minor) (wardship: medical treatment) [1992] 4 All ER 614,

[1993] Fam 15 he said (at 252):

'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 (at 253):

'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

[1993] 1 All ER 821 at 838

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 Hôtel-Dieu de Québec (1992) 86 DLR (4th) 385 the Quebec Superior
Court granted the plaintiff, a victim of the Guillain-Barré 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 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 recognise 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 sufficient a 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) that—

[1993] 1 All ER 821 at 839

'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 (the BMA) in September 1992 recorded (at p 22) that there had
been no prosecutions in Scotland in cases where doctors had withdrawn nutrition from
PVS patients with the agreement of the patients' families. An earlier BMA 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 [PVS] 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 (at p 16) 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 QC for the plaintiff trust relied on the
reasoning underlying this weight of authority, as did Mr Lester QC who supported the
plaintiff's 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
PVS 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 Re J [1992] 4 All ER 614, [1993] Fam 15 is sound, step (2) of the
argument is also sound. I think that the reasoning in Re J is sound. It is also consistent
with the reasoning in Re B (a minor) (wardship: medical treatment) (1981) [1990] 3 All
ER 927, [1981] 1 WLR 1421 and Re C [1989] 2 All ER 782, [1990] Fam 26. In any
event the ratio of 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

[1993] 1 All ER 821 at 840

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 none the less
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, Sir Stephen Brown P 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:

'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
R v Adams (8 April 1957, unreported) 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 R v Cox (18
September 1992, unreported) 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 R v Adams and R
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 PVS 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

[1993] 1 All ER 821 at 841

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 PVS 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 PVS 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 PVS 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, whether or not it also
involves 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 R v Stone [1977] 2 All ER 341, [1977]

[1993] 1 All ER 821 at 842

QB 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:

'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 Sir Stephen Brown P 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 Sir Stephen Brown P
described should be followed.

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

BUTLER-SLOSS LJ.

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 MR. He is at the extreme end of the spectrum of those suffering
from the condition of persistent vegetative state (PVS). 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,

[1993] 1 All ER 821 at 843

the right of self-determination. Such a decision may be rational or irrational (see

Sidaway v Bethlem Royal Hospital Governors [1985] 1 All ER 643 at 665–666, [1985]
AC 871 at 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) 72 OR (2d) 417). 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 F v West Berkshire Health Authority (Mental Health Act
Commission intervening) [1989] 2 All ER 545 at 562, [1990] 2 AC 1 at 71 per Lord
Goff of Chieveley and Schloendorff v Society of New York Hospital (1914) 211 NY 125
at 129 per Cardozo J).

In this case Anthony Bland has not given a clear indication of his views. His family are
unable to consent on his behalf (see Re T (adult: refusal of medical treatment) [1992] 4
All ER 649 at 653, [1992] 3 WLR 782 at 787 per Lord Donaldson MR). His father
expressed in evidence his view that his son would not have wished to live in his present
state. As Lord Donaldson MR said 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 F v West
Berkshire Health Authority 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 F v West Berkshire Health Authority and Re T). 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.

[1993] 1 All ER 821 at 844

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 QC 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 Dept of Health (1990) 497 US 261.
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 Sir Stephen Brown P 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 F v West Berkshire Health Authority). 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] 2 All ER 118, [1957] 1 WLR 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 none the less that, since feeding is not treatment, the
futility of

[1993] 1 All ER 821 at 845

continuing useless treatment does not arise, and in any event it is never futile to feed.
None the less decisions have to be made about future treatment which involve choices
such as whether to provide antibiotics. Sir Stephen Brown P 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 PVS 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 MR spoke in Re J (a minor) (wardship: medical
treatment) [1990] 3 All ER 930 at 938, [1991] Fam 33 at 46 of the vast importance of the
sanctity of the human life. I respectfully agree with him. Its importance cannot be
overemphasised. He said:

'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 MR's emphasis.)

Lord Donaldson MR 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 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 her life. Lord Donaldson MR
did not feel bound to follow the views expressed (obiter) in Re B (a minor) (wardship:
medical treatment) (1981) [1990] 3 All ER 927, [1981] 1 WLR 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 Re B this court was considering a simple
operation to clear an intestinal obstruction of a Down's syndrome baby. The
circumstances of Re J or of this appeal were not considered by the members of the court.
Dunn

[1993] 1 All ER 821 at 846

LJ pointed out 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 (see [1990] 3 All
ER 927 at 929–930, [1981] 1 WLR 1421 at 1424).

Although this court in Re J 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 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 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 PVS patient
are limited to that sole consideration.

To place pain and suffering in a 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 Re J situation of extreme pain and suffering. 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 LJ said in Re J [1990] 3 All ER 930 at 945, [1991] Fam
33 at 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 PVS
patient. He remains a person and not an object of concern. In Re Conroy (1985) 98 NJ
321 at 396 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 Dept of Health (1990) 110 S Ct 2841 at 2885–2886 (a PVS
case) Stevens J (in a dissenting opinion) said:

[1993] 1 All ER 821 at 847

'But Nancy Cruzan's interest in life, no less than that of 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 Guardianship of Jane Doe (1992) 411 Mass 512 the Supreme Judicial Court of
Massachusetts (in a PVS 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. Re Jobes (1987) 108 NJ 394 (a PVS patient)
following Re Quinlan (1976) 70 NJ 10 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), quoted a passage in his
opinion in Re Conroy (1985) 98 NJ 321 at 398–399:

'“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 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.” Based upon such factors
it should be possible to structure critical treatment decisions that are
reliable, understandable and acceptable.' (See 108 NJ 394 at 443–444.)

Auckland Area Health Board v A-G [1993] 1 NZLR 235 was an extreme example of a
Guillain-Barré syndrome, causing a condition somewhat similar to a PVS 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 (at 245) 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 Re Jobes (1987) 108 NJ 394 at 436, and in some cases it is
clearly an objective assessment of best interests

[1993] 1 All ER 821 at 848

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.
Sir Stephen Brown P 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 PVS 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 QC that there is no actus reus and no unlawful act or omission. The
issue of mens rea does not arise.

[1993] 1 All ER 821 at 849

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 Los Angeles County (1983) 147 Cal App
3d 1006. 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 (see R v Cox (18 September 1992, unreported),
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 F v West Berkshire Health Authority
[1989] 2 All ER 545, [1990] 2 AC 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 BMA have laid down careful guidelines for
these cases. None the less in F v West Berkshire Health Authority 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 PVS patient, the intervention of the High Court is a proper
safeguard. I respectfully agree with the formulation of the procedures proposed by Sir
Stephen Brown P 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 LJ.

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.

[1993] 1 All ER 821 at 850

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 a 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
MR and Butler-Sloss LJ that in English law it would be lawful for the Airedale 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

[1993] 1 All ER 821 at 851

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 lead 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

[1993] 1 All ER 821 at 852

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 to 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

[1993] 1 All ER 821 at 853

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

[1993] 1 All ER 821 at 854

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 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 for the Attorney General said that
there was—

'no conflict between having regard to the quality of life and respecting the
sanctity of life; on the contrary they are complementary; the principle of
the 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 in 'Two concepts of liberty'
in Four Essays on Liberty (1969) pp 168, 170:

'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

[1993] 1 All ER 821 at 855

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.'

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

[1993] 1 All ER 821 at 856

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 (see R v Cox (18 September 1992, unreported), Ognall J). 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 Sir Stephen Brown P
'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

[1993] 1 All ER 821 at 857

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 NHS 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 F v West
Berkshire Health Authority (Mental Health Act Commission intervening) [1989] 2 All
ER 545, [1990] 2 AC 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 Re Conroy (1985) 98 NJ 321 and Brennan and Stevens JJ in Cruzan v
Director, Missouri Dept of Health (1990) 497 US 261. 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 Re J (a minor) (wardship:
medical treatment) [1990] 3 All ER 930, [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 MR and Butler-Sloss LJ have
said about the procedure to be followed in future cases.

Finally, I must deal with some aspects of the judgment of Sir Stephen Brown P. 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

[1993] 1 All ER 821 at 858

care for the purposes of deciding the central issue in this case. This brings me to the
second point of concern. Sir Stephen Brown P laid some emphasis upon the fact that
according to professional medical opinion and the British Medical Association'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 Sir Stephen Brown P 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.

Appeal dismissed. Leave to appeal to the House of Lords granted. No order as to costs.
Francis Rustin Barrister.
Appeal

The defendant, acting by the Official Solicitor as his guardian ad litem, appealed with
the leave of the Court of Appeal.

James Munby QC (instructed by the Official Solicitor) for the Official Solicitor as
guardian ad litem.
Robert Francis QC and M R Taylor (instructed by Penningtons, agents for W J M Lovel,
Harrogate) for the plaintiffs.
Anthony Lester QC and Pushpinder Saini (instructed by the Treasury Solicitor) as
amicus curiae.
Their Lordships took time for consideration.
4 February 1993. The following opinions were delivered.

LORD KEITH OF KINKEL.

[1993] 1 All ER 821 at 859

My Lords, as a result of injuries sustained in the Hillsborough disaster, Anthony Bland

has for over three years been in the condition known as persistent vegetative state (PVS).
It is unnecessary to go into all the details about the manifestations of this state, which are
fully set out in the judgments of the courts below. It is sufficient to say that it arises from
the destruction, through prolonged deprivation of oxygen, of the cerebral cortex, which
has resolved into a watery mass. The cortex is that part of the brain which is the seat of
cognitive function and sensory capacity. Anthony Bland cannot see, hear or feel
anything. He cannot communicate in any way. The consciousness which is the essential
feature of individual personality has departed for ever. On the other hand the brain stem,
which controls the reflexive functions of the body, in particular heartbeat, breathing and
digestion, continues to operate. In the eyes of the medical world and of the law a person
is not clinically dead so long as the brain stem retains its function. In order to maintain
Anthony Bland in his present condition, feeding and hydration are achieved artificially
by means of a nasogastric tube and excretionary functions are regulated by a catheter and
by enemas. The catheter from time to time gives rise to infections which have to be dealt
with by appropriate medical treatment. The undisputed consensus of eminent medical
opinion is that there is no prospect whatever that Anthony Bland will ever make any
recovery from his present condition, but that there is every likelihood that he will
maintain his present state of existence for many years to come, provided that the medical
care which he is now receiving is continued.

In that state of affairs the medical men in charge of Anthony Bland's case formed the
view, which was supported by his parents, that no useful purpose was to be served by
continuing that medical care and that it was appropriate to stop the artificial feeding and
other measures aimed at prolonging his existence. Since, however, there were doubts as
to whether this course might not constitute a criminal offence, the responsible hospital
authority, the Airedale NHS Trust, sought in the High Court of Justice declarations
designed to resolve these doubts. In the result declarations on the lines asked for were
granted by judgment of Sir Stephen Brown P on 19 November 1992. That judgment was
affirmed by the Court of Appeal (Sir Thomas Bingham MR, Butler-Sloss and Hoffmann
LJJ) on 9 December 1992. The declarations are in these terms:

'… that despite the inability of [the defendant] to consent thereto the
Plaintiffs and the responsible attending physicians: (1) may lawfully
discontinue all life-sustaining treatment and medical support measures
designed to keep [the defendant] alive in his existing persistent vegetative
state including the termination of ventilation nutrition and hydration by
artificial means; and (2) may lawfully discontinue and thereafter need not
furnish medical treatment to [the defendant] except for the sole purpose
of enabling [him] to end his life and die peacefully with the greatest
dignity and the least of pain suffering and distress …'

Anthony Bland, by the Official Solicitor as his guardian ad litem, now appeals, with
leave given in the Court of Appeal, to your Lordships' House. At the hearing of the
appeal your Lordships were assisted by submissions made by Mr Anthony Lester QC as
amicus curiae instructed by the Treasury Solicitor.

The broad issue raised by the appeal is stated by the parties to be: 'In what
circumstances, if ever, can those having a duty to feed an invalid lawfully stop doing so?'
The immediate issue, however, is whether in the particular circumstances of Anthony
Bland's case those in charge of it would be acting lawfully if they discontinued the
particular measures, including feeding by

[1993] 1 All ER 821 at 860

nasogastric tube, which are now being used to maintain Anthony Bland in his existing
condition.
The first point to make is that it is unlawful, so as to constitute both a tort and the crime
of battery, to administer medical treatment to an adult, who is conscious and of sound
mind, without his consent: see F v West Berkshire Health Authority (Mental Health Act
Commission intervening) [1989] 2 All ER 545, [1990] 2 AC 1. Such a person is
completely at liberty to decline to undergo treatment, even if the result of his doing so
will be that he will die. This extends to the situation where the person, in anticipation of
his, through one cause or another, entering into a condition such as PVS, gives clear
instructions that in such event he is not to be given medical care, including artificial
feeding, designed to keep him alive. The second point is that it very commonly occurs
that a person, due to accident or some other cause, becomes unconscious and is thus not
able to give or withhold consent to medical treatment. In that situation it is lawful, under
the principle of necessity, for medical men to apply such treatment as in their informed
opinion is in the best interests of the unconscious patient. That is what happened in the
case of Anthony Bland when he was first dealt with by the emergency services and later
taken to hospital.

The object of medical treatment and care is to benefit the patient. It may do so by taking
steps to prevent the occurrence of illness, or, if an illness does occur, by taking steps
towards curing it. Where an illness or the effects of an injury cannot be cured, then
efforts are directed towards preventing deterioration or relieving pain and suffering. In
Anthony Bland's case the first imperative was to prevent him from dying, as he would
certainly have done in the absence of the steps that were taken. If he had died, there can
be no doubt that the cause of this would have been the injuries which he had suffered. As
it was, the steps taken prevented him from dying, and there was instituted the course of
treatment and care which still continues. For a time, no doubt, there was some hope that
he might recover sufficiently for him to be able to live a life that had some meaning.
Some patients who have suffered damage to the cerebral cortex have, indeed, made a
complete recovery. It all depends on the degree of damage. But sound medical opinion
takes the view that if a PVS patient shows no signs of recovery after six months, or at
most a year, then there is no prospect whatever of any recovery. There are techniques
available which make it possible to ascertain the state of the cerebral cortex, and in
Anthony Bland's case these indicate that, as mentioned above, it has degenerated into a
mass of watery fluid. The fundamental question then comes to be whether continuance
of the present regime of treatment and care, more than three years after the injuries that
resulted in the PVS, would confer any benefit on Anthony Bland. It is argued for the
respondents, supported by the amicus curiae, that his best interests favour
discontinuance. I feel some doubt about this way of putting the matter. In F v West
Berkshire Health Authority [1989] 2 All ER 545, [1990] 2 AC 1 this House held that it
would be lawful to sterilise a female mental patient who was incapable of giving consent
to the procedure. The ground of the decision was that sterilisation would be in the
patient's best interests because her life would be fuller and more agreeable if she were
sterilised than if she were not. In Re J (a minor) (wardship: medical treatment) [1990] 3
All ER 930, [1991] Fam 33 the Court of Appeal held it to be lawful to withhold life-
saving treatment from a very young child in circumstances where the child's life, if
saved, would be one irredeemably racked by pain and agony. In both cases it was
possible to make a value judgment as to the consequences to a sensate being of in the
one case withholding and in the other case administering the treatment in question. In the
case of a permanently insensate being, who if continuing to live

[1993] 1 All ER 821 at 861

would never experience the slightest actual discomfort, it is difficult, if not impossible,
to make any relevant comparison between continued existence and the absence of it. It
is, however, perhaps permissible to say that to an individual with no cognitive capacity
whatever, and no prospect of ever recovering any such capacity in this world, it must be
a matter of complete indifference whether he lives or dies.

Where one individual has assumed responsibility for the care of another who cannot look
after himself or herself, whether as a medical practitioner or otherwise, that
responsibility cannot lawfully be shed unless arrangements are made for the
responsibility to be taken over by someone else. Thus a person having charge of a baby
who fails to feed it, so that it dies, will be guilty at least of manslaughter. The same is
true of one having charge of an adult who is frail and cannot look after herself: see R v
Stone [1977] 2 All ER 341, [1977] QB 354. It was argued for the guardian ad litem, by
analogy with that case, that here the doctors in charge of Anthony Bland had a
continuing duty to feed him by means of the nasogastric tube and that if they failed to
carry out that duty they were guilty of manslaughter, if not murder. This was coupled
with the argument that feeding by means of the nasogastric tube was not medical
treatment at all, but simply feeding indistinguishable from feeding by normal means. As
regards this latter argument, I am of opinion that regard should be had to the whole
regime, including the artificial feeding, which at present keeps Anthony Bland alive.
That regime amounts to medical treatment and care, and it is incorrect to direct attention
exclusively to the fact that nourishment is being provided. In any event, the
administration of nourishment by the means adopted involves the application of a
medical technique. But it is, of course, true that in general it would not be lawful for a
medical practitioner who assumed responsibility for the care of an unconscious patient
simply to give up treatment in circumstances where continuance of it would confer some
benefit on the patient. On the other hand a medical practitioner is under no duty to
continue to treat such a patient where a large body of informed and responsible medical
opinion is to the effect that no benefit at all would be conferred by continuance.
Existence in a vegetative state with no prospect of recovery is by that opinion regarded
as not being a benefit, and that, if not unarguably correct, at least forms a proper basis
for the decision to discontinue treatment and care: see Bolam v Friern Hospital
Management Committee [1957] 2 All ER 118, [1957] 1 WLR 582.

Given that existence in the persistent vegetative state is not a benefit to the patient, it
remains to consider whether the principle of the sanctity of life, which it is the concern
of the state, and the judiciary as one of the arms of the state, to maintain, requires this
House to hold that the judgment of the Court of Appeal was incorrect. In my opinion it
does not. The principle is not an absolute one. It does not compel a medical practitioner
on pain of criminal sanctions to treat a patient, who will die if he does not, contrary to
the express wishes of the patient. It does not authorise forcible feeding of prisoners on
hunger strike. It does not compel the temporary keeping alive of patients who are
terminally ill where to do so would merely prolong their suffering. On the other hand it
forbids the taking of active measures to cut short the life of a terminally ill patient. In my
judgment it does no violence to the principle to hold that it is lawful to cease to give
medical treatment and care to a PVS patient who has been in that state for over three
years, considering that to do so involves invasive manipulation of the patient's body to
which he has not consented and which confers no benefit upon him.
Although this case falls to be decided by the law of England, it is of some

[1993] 1 All ER 821 at 862

comfort to observe that in other common law jurisdictions, particularly in the United
States where there are many cases on the subject, the courts have with near unanimity
concluded that it is not unlawful to discontinue medical treatment and care, including
artificial feeding, of PVS patients and others in similar conditions.

The decision whether or not the continued treatment and care of a PVS patient confers
any benefit on him is essentially one for the practitioners in charge of his case. The
question is whether any decision that it does not and that the treatment and care should
therefore be discontinued should as a matter of routine be brought before the Family
Division for indorsement or the reverse. The view taken by Sir Stephen Brown P and the
Court of Appeal was that it should, at least for the time being and until a body of
experience and practice has been built up which might obviate the need for application in
every case. As Sir Thomas Bingham MR said (at p 842, ante), this would be in the
interests of the protection of patients, the protection of doctors, the reassurance of the
patients' families and the reassurance of the public. I respectfully agree that these
considerations render desirable the practice of application.

My Lords, for these reasons, which are substantially the same as those set out in the
speech to be delivered by my noble and learned friend Lord Goff of Chieveley, with
which I agree, I would dismiss the appeal.

LORD GOFF OF CHIEVELEY.

My Lords, the facts of the present case are not in dispute. They are fully set out in the
judgment of Sir Stephen Brown P at first instance (see p 824, ante); they have been
admirably summarised in the judgment of Sir Thomas Bingham MR in the Court of
Appeal (see p 834, ante); and they have been summarised yet again in the agreed
statement of facts and issues prepared by counsel for the assistance of the Appellate
Committee of your Lordships' House. They reveal a tragic state of affairs, which has
evoked great sympathy, both for Anthony Bland himself and for his devoted family, and
great respect for all those who have been responsible for his medical treatment and care
since he was admitted to hospital following the terrible injuries which he suffered at
Hillsborough in April 1989. For present purposes, I propose simply to adopt the
sympathetic and economical summary of Sir Thomas Bingham MR (see pp 834–835,
ante), which, for convenience of reference, I will now incorporate into this opinion.

'Mr Anthony David Bland, then aged 171/2, 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 (PVS).
PVS is a recognised medical condition quite distinct from other
conditions sometimes known as “irreversible coma”, “the Guillain-Barré
 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 PVS 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

[1993] 1 All ER 821 at 863

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 describe Mr Bland as the worst PVS 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. Urino-
genitary 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 PVS 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 tube 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 NHS Trust as
plaintiff 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 AB
[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 AB except for the sole purpose of enabling AB 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, acting on behalf of Anthony Bland, appealed against that

[1993] 1 All ER 821 at 864

decision to the Court of Appeal, which dismissed the appeal. Now, with the leave of the
Court of Appeal, the Official Solicitor has appealed to your Lordships' House.

In so acting, the Official Solicitor has ensured that all relevant matters of fact and law
are properly investigated and scrutinised before any irrevocable decision is taken
affecting Anthony Bland, for whom he acts as guardian ad litem. This function was
performed by Mr James Munby QC, who appeared before your Lordships as he did
before the courts below; and he made submissions in the form of a series of propositions
any of which, if accepted, would preclude the grant of the declarations granted by Sir
Stephen Brown P. Like the courts below, I have come to the conclusion that I am unable
to accept Mr Munby's submissions; but I have nevertheless found them to be of great
assistance in that they have compelled me to think more deeply about the applicable
principles of law and, I hope, to formulate those principles more accurately. Your
Lordships were also fortunate to have the assistance of Mr Anthony Lester QC,
appearing as amicus curiae, instructed by the Treasury Solicitor, and of the thoughtful
argument of Mr Robert Francis QC for the respondents.

On one point there was no disagreement between counsel appearing before your
Lordships. This was that proceedings for declaratory relief of the kind considered by this
House in F v West Berkshire Health Authority (Mental Health Act Commission
intervening) [1989] 2 All ER 545, [1990] 2 AC 1 provided the most appropriate means
by which authoritative guidance could be provided for the respondents to the appeal, the
Airedale NHS Trust, and for Dr Howe, who has Anthony Bland in his care, whose wish
it is, in agreement with Anthony's parents, to discontinue the artificial feeding of
Anthony, with the inevitable result that, within one or two weeks, he will die. There has
therefore been no contested argument about the appropriateness of the declaratory
remedy in cases such as these, which are in fact concerned with the question whether in
the particular circumstances those who discontinue life support (here artificial feeding)
will commit a civil wrong or a criminal offence. In F v West Berkshire Health Authority
the question arose whether it would be lawful for doctors to sterilise an adult woman of
unsound mind. In that case, this House was deeply concerned to discover that it was
common ground between the parties that, in the case of adult persons of unsound mind,
the parens patriae jurisdiction of the courts had been revoked with the effect that the
courts could no longer exercise their jurisdiction to give consent on behalf of such
persons. On that occasion Mr Munby, who there as here was instructed by the Official
Solicitor, was invited to assist this House by advancing such arguments as could be
advanced that the jurisdiction had not been abolished. At the end of the argument, your
Lordships' House came reluctantly to the conclusion that the jurisdiction no longer
existed; but, dismayed by the possibility that the courts might be powerless to provide
the necessary guidance to the medical profession in that case, this House had recourse to
declaratory relief for that purpose. Speaking for myself, I remain of the opinion that this
conclusion was entirely justified. Of course, I recognise that strong warnings have been
given against the civil courts usurping the function of the criminal courts, and it has been
authoritatively stated that a declaration as to the lawfulness or otherwise of future
conduct is 'no bar to a criminal prosecution, no matter the authority of the court which
grants it': see Imperial Tobacco Ltd v A-G [1980] 1 All ER 866 at 875, 884, [1981] AC
718 at 741, 752 per Viscount Dilhorne, and see also per Lord Lane. But it is plain that
the jurisdiction exists to grant such a declaration, and on occasion that jurisdiction has
been exercised, as for example by your Lordships' House in Royal College of Nursing of
the UK v Dept of Health and

[1993] 1 All ER 821 at 865

Social Security [1981] 1 All ER 545, [1981] AC 800. It would, in my opinion, be a

deplorable state of affairs if no authoritative guidance could be given to the medical
profession in a case such as the present, so that a doctor would be compelled either to act
contrary to the principles of medical ethics established by his professional body or to risk
a prosecution for murder. As Compton J said in Barber v Superior Court of Los Angeles
County (1983) 147 Cal App 3d 1006 at 1011: '… a murder prosecution is a poor way to
design an ethical and moral code for doctors who are faced with decisions concerning
the use of costly and extraordinary “life support” equipment.' In practice, authoritative
guidance in circumstances such as these should in normal circumstances inhibit
prosecution or, if (contrary to all expectation) criminal proceedings were launched,
justify the Attorney General in entering a nolle prosequi. In the present case it is to be
remembered that an amicus curiae has been instructed by the Treasury Solicitor; yet no
representations have been made on behalf of the Attorney General that declaratory relief
is here inappropriate. In expressing this opinion, I draw comfort from the fact that
declaratory rulings have been employed for the same purpose in other common law
jurisdictions, such as the United States of America (in a number of cases, of which the
most recent appears to be Re Gardner (1987) 534 A 2d 947 at 949), New Zealand
Auckland Area Health Board v A-G [1993] 1 NZLR 235 at 241–244, 255 per Thomas J,
to whom submissions had been addressed upon the point) and South Africa (Clarke v
Hurst (30 July 1992, unreported) per Thirion J).

The central issue in the present case has been aptly stated by Sir Thomas Bingham MR
to be 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. The Court of Appeal, like Sir Stephen Brown P,
answered this question generally in the affirmative, and (in the declarations made or
approved by them) specifically also in the affirmative in relation to Anthony Bland. I
find myself to be in agreement with the conclusions so reached by all the judges below,
substantially for the reasons given by them. But the matter is of such importance that I
propose to express my reasons in my own words.

I start with the simple fact that, in law, Anthony is still alive. It is true that his condition
is such that it can be described as a living death; but he is nevertheless still alive. This is
because, as a result of developments in modern medical technology, doctors no longer
associate death exclusively with breathing and heart beat, and it has come to be accepted
that death occurs when the brain, and in particular the brain stem, has been destroyed
(see Professor Ian Kennedy's paper entitled 'Switching off life support machines: the
legal implications' reprinted in Treat Me Right, Essays in Medical Law and Ethics
(1988) esp at 351–352 and the material there cited). There has been no dispute on this
point in the present case, and it is unnecessary for me to consider it further. The evidence
is that Anthony's brain stem is still alive and functioning and it follows that, in the
present state of medical science, he is still alive and should be so regarded as a matter of
law.

It is on this basis that I turn to the applicable principles of law. Here, the fundamental
principle is the principle of the sanctity of human life—a principle long recognised not
only in our own society but also in most, if not all, civilised societies throughout the
modern world, as is indeed evidenced by its recognition both in art 2 of the European
Convention on Human Rights (Convention for the Protection of Human Rights and
Fundamental Freedoms (Rome, 4 November 1950; TS 71 (1953); Cmd 8969)) and in art
6 of the International Covenant on Civil and Political Rights (New York, 19 December
1966; TS 6 (1977); Cmnd 6702).

[1993] 1 All ER 821 at 866

But this principle, fundamental though it is, is not absolute. Indeed there are
circumstances in which it is lawful to take another man's life, for example by a lawful act
of self-defence, or (in the days when capital punishment was acceptable in our society)
by lawful execution. We are not however concerned with cases such as these. We are
concerned with circumstances in which it may be lawful to withhold from a patient
medical treatment or care by means of which his life may be prolonged. But here too
there is no absolute rule that the patient's life must be prolonged by such treatment or
care, if available, regardless of the circumstances.

First, it is established that the principle of self-determination requires that respect must
be given to the wishes of the patient, so that, if an adult patient of sound mind refuses,
however unreasonably, to consent to treatment or care by which his life would or might
be prolonged, the doctors responsible for his care must give effect to his wishes, even
though they do not consider it to be in his best interests to do so (see Schloendorff v
Society of New York Hospital (1914) 211 NY 125 at 129–130 per Cardozo J, S v S, W v
Official Solicitor [1970] 3 All ER 107 at 111, [1972] AC 24 at 43 per Lord Reid and
Sidaway v Bethlem Royal Hospital Governors [1985] 1 All ER 643 at 649, [1985] AC
871 at 882 per Lord Scarman). To this extent, the principle of the sanctity of human life
must yield to the principle of self-determination (see p 851 ante, per Hoffmann LJ), and,
for present purposes perhaps more important, the doctor's duty to act in the best interests
of his patient must likewise be qualified. On this basis, it has been held that a patient of
sound mind may, if properly informed, require that life support should be discontinued:
see Nancy B v Hôtel-Dieu de Québec (1992) 86 DLR (4th) 385. Moreover the same
principle applies where the patient's refusal to give his consent has been expressed at an
earlier date, before he became unconscious or otherwise incapable of communicating it;
though in such circumstances especial care may be necessary to ensure that the prior
refusal of consent is still properly to be regarded as applicable in the circumstances
which have subsequently occurred (see eg Re T (adult: refusal of medical treatment)
[1992] 4 All ER 649, [1992] 3 WLR 782). I wish to add that, in cases of this kind, there
is no question of the patient having committed suicide, nor therefore of the doctor having
aided or abetted him in doing so. It is simply that the patient has, as he is entitled to do,
declined to consent to treatment which might or would have the effect of prolonging his
life, and the doctor has, in accordance with his duty, complied with his patient's wishes.

But in many cases not only may the patient be in no condition to be able to say whether
or not he consents to the relevant treatment or care, but also he may have given no prior
indication of his wishes with regard to it. In the case of a child who is a ward of court,
the court itself will decide whether medical treatment should be provided in the child's
best interests, taking into account medical opinion. But the court cannot give its consent
on behalf of an adult patient who is incapable of himself deciding whether or not to
consent to treatment. I am of the opinion that there is nevertheless no absolute obligation
upon the doctor who has the patient in his care to prolong his life, regardless of the
circumstances. Indeed, it would be most startling, and could lead to the most adverse and
cruel effects upon the patient, if any such absolute rule were held to exist. It is scarcely
consistent with the primacy given to the principle of self-determination in those cases in
which the patient of sound mind has declined to give his consent that the law should
provide no means of enabling treatment to be withheld in appropriate circumstances
where the patient is in no condition to indicate, if that was his wish, that he did not
consent to it. The point was put forcibly in the judgment of

[1993] 1 All ER 821 at 867

the Supreme Judicial Court of Massachusetts in Belchertown State School

Superintendent v Saikewicz (1977) 373 Mass 728 at 747 as follows:

'To presume that the incompetent person must always be subjected to

what many rational and intelligent persons may decline is to downgrade
the status of the incompetent person by placing a lesser value on his
intrinsic human worth and vitality.'

I must however stress, at this point, that the law draws a crucial distinction between
cases in which a doctor decides not to provide, or to continue to provide for his patient
treatment or care which could or might prolong his life and those in which he decides,
for example by administering a lethal drug, actively to bring his patient's life to an end.
As I have already indicated, the former may be lawful, either because the doctor is
giving effect to his patient's wishes by withholding the treatment or care, or even in
certain circumstances in which (on principles which I shall describe) the patient is
incapacitated from stating whether or not he gives his consent. But it is not lawful for a
doctor to administer a drug to his patient to bring about his death, even though that
course is prompted by a humanitarian desire to end his suffering, however great that
suffering may be: see R v Cox (18 September 1992, unreported) per Ognall J in the
Crown Court at Winchester. So to act is to cross the Rubicon which runs between on the
one hand the care of the living patient and on the other hand euthanasia—actively
causing his death to avoid or to end his suffering. Euthanasia is not lawful at common
law. It is of course well known that there are many responsible members of our society
who believe that euthanasia should be made lawful; but that result could, I believe, only
be achieved by legislation which expresses the democratic will that so fundamental a
change should be made in our law, and can, if enacted, ensure that such legalised killing
can only be carried out subject to appropriate supervision and control. It is true that the
drawing of this distinction may lead to a charge of hypocrisy, because it can be asked
why, if the doctor, by discontinuing treatment, is entitled in consequence to let his
patient die, it should not be lawful to put him out of his misery straight away, in a more
humane manner, by a lethal injection, rather than let him linger on in pain until he dies.
But the law does not feel able to authorise euthanasia, even in circumstances such as
these, for, once euthanasia is recognised as lawful in these circumstances, it is difficult to
see any logical basis for excluding it in others.

At the heart of this distinction lies a theoretical question. Why is it that the doctor who
gives his patient a lethal injection which kills him commits an unlawful act and indeed is
guilty of murder, whereas a doctor who, by discontinuing life support, allows his patient
to die may not act unlawfully and will not do so if he commits no breach of duty to his
patient? Professor Glanville Williams has suggested (see Textbook of Criminal Law
(2nd edn, 1983) p 282) that the reason is that what the doctor does when he switches off
a life support machine 'is in substance not an act but an omission to struggle' and that 'the
omission is not a breach of duty by the doctor, because he is not obliged to continue in a
hopeless case'.

I agree that the doctor's conduct in discontinuing life support can properly be categorised
as an omission. It is true that it may be difficult to describe what the doctor actually does
as an omission, for example where he takes some positive step to bring the life support
to an end. But discontinuation of life support is, for present purposes, no different from
not initiating life support in the first place. In each case, the doctor is simply allowing his
patient to die in the sense that he is desisting from taking a step which might, in certain
circumstances, prevent his

[1993] 1 All ER 821 at 868

patient from dying as a result of his pre-existing condition; and 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. I also agree that the doctor's conduct is to be differentiated from that
of, for example, an interloper who maliciously switches off a life support machine
because, although the interloper may perform exactly the same act as the doctor who
discontinues life support, his doing so constitutes interference with the life-prolonging
treatment then being administered by the doctor. Accordingly, whereas the doctor, in
discontinuing life support, is simply allowing his patient to die of his pre-existing
condition, the interloper is actively intervening to stop the doctor from prolonging the
patient's life, and such conduct cannot possibly be categorised as an omission.

The distinction appears, therefore, to be useful in the present context in that it can be
invoked to explain how discontinuance of life support can be differentiated from ending
a patient's life by a lethal injection. But in the end the reason for that difference is that,
whereas the law considers that discontinuance of life support may be consistent with the
doctor's duty to care for his patient, it does not, for reasons of policy, consider that it
forms any part of his duty to give his patient a lethal injection to put him out of his
agony.

I return to the patient who, because for example he is of unsound mind or has been
rendered unconscious by accident or by illness, is incapable of stating whether or not he
consents to treatment or care. In such circumstances, it is now established that a doctor
may lawfully treat such a patient if he acts in his best interests, and indeed that, if the
patient is already in his care, he is under a duty so to treat him: see F v West Berkshire
Health Authority [1989] 2 All ER 545, [1990] 2 AC 1, in which the legal principles
governing treatment in such circumstances were stated by this House. For my part I can
see no reason why, as a matter of principle, a decision by a doctor whether or not to
initiate, or to continue to provide, treatment or care which could or might have the effect
of prolonging such a patient's life should not be governed by the same fundamental
principle. Of course, in the great majority of cases, the best interests of the patient are
likely to require that treatment of this kind, if available, should be given to a patient. But
this may not always be so. To take a simple example given by Thomas J in the High
Court of New Zealand in Auckland Area Health Board v A-G [1993] 1 NZLR 235 at
253, to whose judgment in that case I wish to pay tribute, it cannot be right that a doctor,
who has under his care a patient suffering painfully from terminal cancer, should be
under an absolute obligation to perform upon him major surgery to abate another
condition which, if unabated, would or might shorten his life still further. The doctor
who is caring for such a patient cannot, in my opinion, be under an absolute obligation to
prolong his life by any means available to him, regardless of the quality of the patient's
life. Common humanity requires otherwise, as do medical ethics and good medical
practice accepted in this country and overseas. As I see it, the doctor's decision whether
or not to take any such step must (subject to his patient's ability to give or withhold his
consent) be made in the best interests of the patient. It is this principle too which, in my
opinion, underlies the established rule that a doctor may, when caring for a patient who
is, for example, dying of cancer, lawfully administer painkilling drugs despite the fact
that he knows that an incidental effect of that application will be to abbreviate the
patient's life. Such a decision may properly be made as part of the care of the living
patient, in his best interests; and, on this basis, the treatment will be lawful. Moreover,
where the doctor's treatment of his patient is lawful, the patient's death will be regarded
in law as exclusively caused by the injury or disease to which his condition is
attributable.

[1993] 1 All ER 821 at 869

It is of course the development of modern medical technology, and in particular the

development of life support systems, which has rendered cases such as the present so
much more relevant than in the past. Even so, where, for example, a patient is brought
into hospital in such a condition that, without the benefit of a life support system, he will
not continue to live, the decision has to be made whether or not to give him that benefit,
if available. That decision can only be made in the best interests of the patient. No doubt,
his best interests will ordinarily require that he should be placed on a life support system
as soon as necessary, if only to make an accurate assessment of his condition and a
prognosis for the future. But, if he neither recovers sufficiently to be taken off it nor dies,
the question will ultimately arise whether he should be kept on it indefinitely. As I see it,
that question (assuming the continued availability of the system) can only be answered
by reference to the best interests of the patient himself, having regard to established
medical practice. Indeed, if the justification for treating a patient who lacks the capacity
to consent lies in the fact that the treatment is provided in his best interests, it must
follow that the treatment may, and indeed ultimately should, be discontinued where it is
no longer in his best interests to provide it. The question which lies at the heart of the
present case is, as I see it, whether on that principle the doctors responsible for the
treatment and care of Anthony Bland can justifiably discontinue the process of artificial
feeding upon which the prolongation of his life depends.

It is crucial for the understanding of this question that the question itself should be
correctly formulated. The question is not whether the doctor should take a course which
will kill his patient, or even take a course which has the effect of accelerating his death.
The question is whether the doctor should or should not continue to provide his patient
with medical treatment or care which, if continued, will prolong his patient's life. The
question is sometimes put in striking or emotional terms, which can be misleading. For
example, in the case of a life support system, it is sometimes asked: should a doctor be
entitled to switch it off, or to pull the plug? And then it is asked: can it be in the best
interests of the patient that a doctor should be able to switch the life support system off,
when this will inevitably result in the patient's death? Such an approach has rightly been
criticised as misleading, for example by Professor Ian Kennedy (in his paper in Treat Me
Right, Essays in Medical Law and Ethics (1988)), and by Thomas J in Auckland Area
Health Board v A-G [1993] 1 NZLR 235 at 247. This is because the question is not
whether it is in the best interests of the patient that he should die. The question is
whether it is in the best interests of the patient that his life should be prolonged by the
continuance of this form of medical treatment or care.

The correct formulation of the question is of particular importance in a case such as the
present, where the patient is totally unconscious and where there is no hope whatsoever
of any amelioration of his condition. In circumstances such as these, it may be difficult
to say that it is in his best interests that the treatment should be ended. But, if the
question is asked, as in my opinion it should be, whether it is in his best interests that
treatment which has the effect of artificially prolonging his life should be continued, that
question can sensibly be answered to the effect that it is not in his best interests to do so.

Even so, a distinction may be drawn between (1) cases in which, having regard to all the
circumstances (including, for example, the intrusive nature of the treatment, the hazards
involved in it and the very poor quality of the life which may be prolonged for the
patient if the treatment is successful), it may be judged not to be in the best interests of
the patient to initiate or continue life-prolonging

[1993] 1 All ER 821 at 870

treatment and (2) cases such as the present in which, so far as the living patient is
concerned, the treatment is of no benefit to him because he is totally unconscious and
there is no prospect of any improvement in his condition. In both classes of case the
decision whether or not to withhold treatment must be made in the best interests of the
patient. In the first class, however, the decision has to be made by weighing the relevant
considerations. For example in Re J (a minor) (wardship: medical treatment) [1990] 3
All ER 930 at 945, [1991] Fam 33 at 55 the approach to be adopted in that case was
stated by Taylor LJ as follows:

'I consider that the correct approach is for the court to judge the quality of
life the child would have to endure if given the treatment and decide
whether in all the circumstances such a life would be so afflicted as to be
intolerable to that child.'

With this class of case, however, your Lordships are not directly concerned in the
present case; and, though I do not wish to be understood to be casting any doubt upon
any of the reported cases on the subject, nevertheless I must record that argument was
not directed specifically towards these cases and for that reason I do not intend to
express any opinion about the precise principles applicable in relation to them.

By contrast, in the latter class of case, of which the present case provides an example,
there is in reality no weighing operation to be performed. Here the condition of the
patient, who is totally unconscious and in whose condition there is no prospect of any
improvement, is such that life-prolonging treatment is properly regarded as being, in
medical terms, useless. As Sir Thomas Bingham MR pointed out in the present case,
medical treatment or care may be provided for a number of different purposes. It may be
provided, for example, as an aid to diagnosis, for the treatment of physical or mental
injury or illness, to alleviate pain or distress, or to make the patient's condition more
tolerable. Such purposes may include prolonging the patient's life for example to enable
him to survive during diagnosis and treatment. But for my part I cannot see that medical
treatment is appropriate or requisite simply to prolong a patient's life when such
treatment has no therapeutic purpose of any kind, as where it is futile because the patient
is unconscious and there is no prospect of any improvement in his condition. It is
reasonable also that account should be taken of the invasiveness of the treatment and of
the indignity to which, as the present case shows, a person has to be subjected if his life
is prolonged by artificial means, which must cause, considerable distress to his family—
a distress which reflects not only their own feelings but their perception of the situation
of their relative who is being kept alive. But in the end, in a case such as the present, it is
the futility of the treatment which justifies its termination. I do not consider that, in
circumstances such as these, a doctor is required to initiate or to continue life-prolonging
treatment or care in the best interests of his patient. It follows that no such duty rests
upon the respondents, or upon Dr Howe, in the case of Anthony Bland, whose condition
is in reality no more than a living death, and for whom such treatment or care would, in
medical terms, be futile.

In the present case it is proposed that the doctors should be entitled to discontinue both
the artificial feeding of Anthony and the use of antibiotics. It is plain from the evidence
that Anthony, in his present condition, is very prone to infection and that, over some
necessarily uncertain but not very long period of time, he will succumb to infection
which, if unchecked, will spread and cause his death. But the effect of discontinuing the
artificial feeding will be that he will inevitably die within one or two weeks.

Objection can be made to the latter course of action on the ground that

[1993] 1 All ER 821 at 871

Anthony will thereby be starved to death, and that this would constitute a breach of the
duty to feed him which must form an essential part of the duty which every person owes
to another in his care. But here again it is necessary to analyse precisely what this means
in the case of Anthony. Anthony is not merely incapable of feeding himself. He is
incapable of swallowing, and therefore of eating or drinking in the normal sense of those
words. There is overwhelming evidence that, in the medical profession, artificial feeding
is regarded as a form of medical treatment; and, even if it is not strictly medical
treatment, it must form part of the medical care of the patient. Indeed, the function of
artificial feeding in the case of Anthony, by means of a nasogastric tube, is to provide a
form of life support analogous to that provided by a ventilator which artificially breathes
air in and out of the lungs of a patient incapable of breathing normally, thereby enabling
oxygen to reach the bloodstream. The same principles must apply in either case when the
question is asked whether the doctor in charge may lawfully discontinue the life-
sustaining treatment or care; and, if in either case the treatment is futile in the sense I
have described, it can properly be concluded that it is no longer in the best interests of
the patient to continue it. It is true that, in the case of discontinuance of artificial feeding,
it can be said that the patient will as a result starve to death; and this may bring before
our eyes the vision of an ordinary person slowly dying of hunger, and suffering all the
pain and distress associated with such a death. But here it is clear from the evidence that
no such pain or distress will be suffered by Anthony, who can feel nothing at all.
Furthermore, we are told that the outward symptoms of dying in such a way, which
might otherwise cause distress to the nurses who care for him or to members of his
family who visit him, can be suppressed by means of sedatives. In these circumstances, I
can see no ground in the present case for refusing the declarations applied for simply
because the course of action proposed involves the discontinuance of artificial feeding.

In F v West Berkshire Health Authority [1989] 2 All ER 545, [1990] 2 AC 1 it was

stated that, where a doctor provides treatment for a person who is incapacitated from
saying whether or not he consents to it, the doctor must, when deciding on the form of
treatment, act in accordance with a responsible and competent body of relevant
professional opinion, on the principles set down in Bolam v Friern Hospital Management
Committee [1957] 2 All ER 118, [1957] 1 WLR 582. In my opinion, this principle must
equally be applicable to decisions to initiate, or to discontinue, life support, as it is to
other forms of treatment. However, in a matter of such importance and sensitivity as
discontinuance of life support, it is to be expected that guidance will be provided for the
profession; and, on the evidence in the present case, such guidance is for a case such as
the present to be found in a discussion paper on Treatment of Patients in Persistent
Vegetative State, issued in September 1992 by the medical ethics committee of the
British Medical Association. Anybody reading this substantial paper will discover for
himself the great care with which this topic is being considered by the profession. Mr
Francis for the respondents drew to the attention of the Appellate Committee four
safeguards in particular which, in the committee's opinion, should be observed before
discontinuing life support for such patients. They are: (1) every effort should be made at
rehabilitation for at least six months after the injury; (2) the diagnosis of irreversible
PVS should not be considered confirmed until at least 12 months after the injury, with
the effect that any decision to withhold life-prolonging treatment will be delayed for that
period; (3) the diagnosis should be agreed by two other independent doctors; and (4)
generally, the wishes of the patient's immediate family will be given great weight.
In fact, the views expressed by the committee on the subject of consultation

[1993] 1 All ER 821 at 872

with the relatives of PVS patients are consistent with the opinion expressed by your
Lordships' House in F v West Berkshire Health Authority that it is good practice for the
doctor to consult relatives. Indeed the committee recognises that, in the case of PVS
patients, the relatives themselves will require a high degree of support and attention. But
the committee is firmly of the opinion that the relatives' views cannot be determinative
of the treatment. Indeed, if that were not so, the relatives would be able to dictate to the
doctors what is in the best interests of the patient, which cannot be right. Even so, a
decision to withhold life-prolonging treatment, such as artificial feeding, must require
close co-operation with those close to the patient; and it is recognised that, in practice,
their views and the opinions of doctors will coincide in many cases.

Study of this document left me in no doubt that if a doctor treating a PVS patient acts in
accordance with the medical practice now being evolved by the medical ethics
committee of the British Medical Association he will be acting with the benefit of
guidance from a responsible and competent body of relevant professional opinion, as
required by the Bolam test. I also feel that those who are concerned that a matter of life
and death, such as is involved in a decision to withhold life support in case of this kind,
should be left to the doctors would do well to study this paper. The truth is that, in the
course of their work, doctors frequently have to make decisions which may affect the
continued survival of their patients, and are in reality far more experienced in matters of
this kind than are the judges. It is nevertheless the function of the judges to state the legal
principles upon which the lawfulness of the actions of doctors depend; but in the end the
decisions to be made in individual cases must rest with the doctors themselves. In these
circumstances, what is required is a sensitive understanding by both the judges and the
doctors of each other's respective functions, and in particular a determination by the
judges not merely to understand the problems facing the medical profession in cases of
this kind, but also to regard their professional standards with respect. Mutual
understanding between the doctors and the judges is the best way to ensure the evolution
of a sensitive and sensible legal framework for the treatment and care of patients, with a
sound ethical base, in the interest of the patients themselves. This is a topic to which I
will return at the end of this opinion, when I come to consider the extent to which the
view of the court should be sought, as a matter of practice, in cases such as the present.

I wish however to refer at this stage to the approach adopted in most American courts
under which the court seeks, in a case in which the patient is incapacitated from
expressing any view on the question whether life-prolonging treatment should be
withheld in the relevant circumstances, to determine what decision the patient himself
would have made had he been able to do so. This is called the substituted judgment test,
and it generally involves a detailed inquiry into the patient's views and preferences: see
eg Re Quinlan (1976) 70 NJ 10 and Belchertown State School Superintendent v
Saikewicz (1977) 373 Mass 728. In later cases concerned with PVS patients it has been
held that, in the absence of clear and convincing evidence of the patient's wishes, the
surrogate decision-maker has to implement as far as possible the decision which the
incompetent patient would make if he was competent. However, accepting on this point
the submission of Mr Lester, I do not consider that any such test forms part of English
law in relation to incompetent adults, on whose behalf nobody has power to give consent
to medical treatment. Certainly, in F v West Berkshire Health Authority your Lordships'
House adopted a straightforward test based on the best interests of the patient; and I
myself do not see why the same test should not be applied in the case of PVS patients,
where the question is whether life-prolonging treatment should be

[1993] 1 All ER 821 at 873

withheld. This was also the opinion of Thomas J in Auckland Area Health Board v A-G
[1993] 1 NZLR 235, unreported), a case concerned with the discontinuance of life
support provided by ventilator to a patient suffering from the last stages of incurable
Guillain-Barré syndrome. Of course, consistent with the best interests test, anything
relevant to the application of the test may be taken into account; and, if the personality of
the patient is relevant to the application of the test (as it may be in cases where the
various relevant factors have to be weighed), it may be taken into account, as was done
in Re J (a minor) (wardship: medical treatment) [1990] 3 All ER 930, [1991] Fam 33.
But, where the question is whether life support should be withheld from a PVS patient, it
is difficult to see how the personality of the patient can be relevant, though it may be of
comfort to his relatives if they believe, as in the present case, and indeed may well be so
in many other cases, that the patient would not have wished his life to be artificially
prolonged if he was totally unconscious and there was no hope of improvement in his
condition.

I wish to add however that, like the courts below, I have derived assistance and support
from decisions in a number of American jurisdictions to the effect that it is lawful to
discontinue life-prolonging treatment in the case of PVS patients where there is no
prospect of improvement in their condition. Furthermore, I wish to refer to the section in
Working Paper No 28 (1982) on Euthanasia, Aiding Suicide and Cessation of Treatment
published by the Law Reform Commission of Canada concerned with cessation of
treatment, to which I also wish to express my indebtedness. I believe the legal principles
as I have stated them to be broadly consistent with the conclusions summarised in the
Working Paper (at pp 65–66), which was substantially accepted in the Report of the
Commission (1983) pp 32–35. Indeed, I entertain a strong sense that a community of
view on the legal principles applicable in cases of discontinuing life support is in the
course of development and acceptance throughout the common law world.

In setting out my understanding of the relevant principles, I have had very much in mind
the submissions advanced by Mr Munby on behalf of the Official Solicitor, and I believe
that I have answered, directly or indirectly, all his objections to the course now
proposed. I do not, therefore, intend any disrespect to his argument if I do not answer
each of his submissions seriatim. In summary, his two principal arguments were as
follows. First, he submitted that the discontinuance of artificial feeding would constitute
an act which would inevitably cause, and be intended to cause, Anthony's death; and as
such, it would be unlawful, and indeed criminal. As will be plain from what I have
already said, I cannot accept this proposition. In my opinion, for the reasons I have
already given, there is no longer any duty upon the doctors to continue with this form of
medical treatment or care in his case, and it follows that it cannot be unlawful to
discontinue it. Second, he submitted that discontinuance of the artificial feeding of
Anthony would be a breach of the doctor's duty to care for and feed him- and since it
will (as it is intended to do) cause his death, it will necessarily be unlawful. I have
considered this point earlier in this opinion, when I expressed my view that artificial
feeding is, in a case such as the present, no different from life support by a ventilator,
and as such can lawfully be discontinued when it no longer fulfils any therapeutic
purpose. To me, the crucial point in which I found myself differing from Mr Munby was
that I was unable to accept his treating the discontinuance of artificial feeding in the
present case as equivalent to cutting a mountaineer's rope, or severing the air pipe of a
deep sea diver. Once it is recognised, as I believe it must be, that the true question is not
whether the doctor should take a course in which he will actively kill his patient, but
rather whether

[1993] 1 All ER 821 at 874

he should continue to provide his patient with medical treatment or care which, if
continued, will prolong his life, then, as I see it, the essential basis of Mr Munby's
submissions disappears. I wish to add that I was unable to accept his suggestion that
recent decisions show that the law is proceeding down a 'slippery slope', in the sense that
the courts are becoming more and more ready to allow doctors to take steps which will
result in the ending of life. On the contrary, as I have attempted to demonstrate, the
courts are acting within a structure of legal principle, under which in particular they
continue to draw a clear distinction between the bounds of lawful treatment of a living
patient and unlawful euthanasia.

I turn finally to the extent to which doctors should, as a matter of practice, seek the
guidance of the court, by way of an application for declaratory relief, before withholding
life-prolonging treatment from a PVS patient. Sir Stephen Brown P considered that the
opinion of the court should be sought in all cases similar to the present. In the Court of
Appeal Sir Thomas Bingham MR expressed his agreement with Sir Stephen Brown P in
the following words (see p 842, ante):

'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 Sir Stephen Brown P described should be followed.'

Before the Appellate Committee this view was supported both by Mr Munby for the
Official Solicitor and by Mr Lester as amicus curiae. For the respondents, Mr Francis
suggested that an adequate safeguard would be provided if reference to the court was
required in certain specific cases, ie (1) where there was known to be a medical
disagreement as to the diagnosis or prognosis, and (2) problems had arisen with the
patient's relatives—disagreement by the next of kin with the medical recommendation;
actual or apparent conflict of interest between the next of kin and the patient; dispute
between members of the patient's family; or absence of any next of kin to give their
consent. There is, I consider, much to be said for the view that an application to the court
will not be needed in every case, but only in particular circumstances, such as those
suggested by Mr Francis. In this connection I was impressed not only by the care being
taken by the medical ethics committee to provide guidance to the profession, but also by
information given to the Appellate Committee about the substantial number of PVS
patients in the country, and the very considerable cost of obtaining guidance from the
court in cases such as the present. However, in my opinion this is a matter which would
be better kept under review by the President of the Family Division than resolved now
by your Lordships' House. I understand that a similar review is being undertaken in cases
concerned with the sterilisation of adult women of unsound mind, with a consequent
relaxation of the practice relating to applications to the court in such cases. For my part, I
would therefore leave the matter as proposed by Sir Thomas Bingham MR; but I wish to
express the hope that the President of the Family Division, who will no doubt be kept
well informed about developments in this field, will soon feel able to relax the present
requirement so as to limit applications for declarations to those cases in which there is a
special need for the procedure to be invoked.

I wish to add one footnote. Since preparing this opinion, I have had the opportunity of
reading in draft the speech of my noble and learned friend

[1993] 1 All ER 821 at 875

Lord Browne-Wilkinson, in which he has expressed the view that a doctor, in reaching a
decision whether or not to continue, in the best interests of his patient, to prolong his life
by artificial means, may well be influenced by his own attitude to the sanctity of human
life. The point does not arise for decision in the present case. I only wish to observe that
it has implications not only in the case of a patient who, like Anthony Bland, is totally
unconscious, but also one who may be suffering from great physical pain or (as in the
case of one suffering from Guillain Barré syndrome) extreme mental distress; and it
would in theory fall to be tested if the patient's relatives, dismayed by the artificial
prolongation of the agony of their loved one, were to seek to restrain by injunction a
doctor who was persisting in prolonging his life. I cannot help feeling, however, that
such a situation is more theoretical than real. I suspect that it is unlikely to arise in
practice, if only because the solution could be found in a change of medical practitioner.
It is not to be forgotten, moreover, that doctors who for conscientious reasons would feel
unable to discontinue life support in such circumstances can presumably, like those who
have a conscientious objection to abortion, abstain from involvement in such work. For
present purposes, however, it is enough to state that the best interests test is broad and
flexible in the sense that room must be allowed for the exercise of judgment by the
doctor as to whether the relevant conditions exist which justify the discontinuance of life
support.

For these reasons, I would dismiss the appeal. Having read in draft the speech of my
noble and learned friend Lord Keith of Kinkel, I can see no significant difference from
the opinion which I have expressed.

LORD LOWRY.

My Lords, l have had the advantage of reading in draft the speeches of my noble and
learned friends and, for the reasons given by my noble and learned friend Lord Goff of
Chieveley, with which I understand the remainder of your Lordships to be generally in
agreement, I agree that this appeal should be dismissed.

I cannot usefully elaborate on your Lordships' careful analysis of the arguments. There
are, however, four points in relation to your Lordships' reasoning and conclusions which
it may be worth my while to make.

1. I do not believe that there is a valid legal distinction between the omission to treat a
patient and the abandonment of treatment which has been commenced, since to
recognise such a distinction could quite illogically confer on a doctor who had refrained
from treatment an immunity which did not benefit a doctor who had embarked on
treatment in order to see whether it might help the patient and had abandoned the
treatment when it was seen not to do so.

2. As noted in F v West Berkshire Health Authority (Mental Health Act Commission

intervening) [1989] 2 All ER 545, [1990] 2 AC 1 and again in your Lordships' speeches,
the parens patriae jurisdiction over adults who are for whatever reason mentally
incompetent was abolished by statute. I have never heard a rational, or indeed any,
explanation for this step, which has placed under a further disadvantage a class of adults
who are already handicapped. Parliament has done nothing since F v West Berkshire
Health Authority was decided, but I sincerely hope that the parens patriae jurisdiction
over adults will soon be restored. The corresponding jurisdiction in wardship has
continued to prove its value and it is most unfortunate that the court's armoury in relation
to adults remains thus depleted. The prospect of restoration of this lost power is not
controversial, since it does not conjure up the spectre of euthanasia; the decisions which
can be made by the courts on behalf of incompetent persons would, as in wardship cases,
be confined within lawful bounds.

[1993] 1 All ER 821 at 876

3. Procedurally I can see no present alternative to an application to the court such as that
made in the present case. This view is reinforced for me when I reflect, against the
background of your Lordships' conclusions of law, that, in the absence of an application,
the doctor who proposes the cessation of life-supporting care and treatment on the
ground that their continuance would not be in the patient's best interests will have
reached that conclusion himself and will be judge in his own cause unless and until his
chosen course of action is challenged in criminal or civil proceedings. A practical
alternative may, however, be evolved through the practice of the Family Division and
with the help of the medical ethics committee, which has already devoted so much
thought to the problem, and possibly of Parliament through legislation, it will of course
be understood that the court has no power to render lawful something which without the
court's sanction would have been unlawful. When I take into account that the case now
before your Lordships could not be clearer on its facts, I have to say that I am left with
the feeling that the general position is not satisfactory.

4. Although entirely satisfied with your Lordships' consensus, I ought finally to touch on
the real point in the case. The strength of the Official Solicitor's argument lies in its
simplicity. In answer to the respondents' reliance on accepted medical opinion that
feeding (nutrition and hydration), particularly by sophisticated artificial methods, is part
of the life-supporting medical treatment, he says that the duty to feed a helpless person,
such as a baby or an unconscious patient, is something different—an elementary duty to
keep the patient alive which exists independently of all questions of treatment and which
the person in charge cannot omit to perform: to omit deliberately to perform this duty in
the knowledge that the omission will lead to the death of the helpless one, and indeed
with the intention, as in the present case, of conducing to that death, will render those in
charge guilty of murder. One of the respondents' counter-arguments, albeit not
conclusive, is based on the overwhelming verdict of informed medical opinion
worldwide, with particular reference to the common law jurisdictions, where the relevant
law generally corresponds closely with our own, that therapy and life-supporting care,
including sophisticated methods of artificial feeding, are components of medical
treatment and cannot be separated as the Official Solicitor contends. In this connection it
may also be emphasised that an artificial feeding regime is inevitably associated with the
continuous use of catheters and enemas and the sedulous avoidance and combating of
potentially deadly infection. I consider that the court, when intent on reaching a decision
according to law, ought to give weight to informed medical opinion both on the point
now under discussion and also on the question of what is in the best interests of a patient
and I reject the idea, which is implicit in the appellant's argument, that informed medical
opinion in these respects is merely a disguise for a philosophy which, if accepted, would
legalise euthanasia.

The real answer to the Official Solicitor, as your Lordships are already agreed, is that his
argument starts from the fallacious premiss, which can be taken as correct in ordinary
doctor-patient relationships, namely that feeding in order to sustain life is necessarily for
the benefit of the patient. But in the prevailing circumstances the opposite view is
overwhelmingly held by the doctors and the validity of that view has been accepted by
the courts below. The doctors consider that in the patient's best interests they ought not
to feed him and the law, as applied by your Lordships, has gone further by saying that
they are not entitled to feed him without his consent, which cannot be obtained. So the
theory of the 'duty to feed' is founded on a misapprehension and the Official Solicitor's
argument leads to a legally erroneous conclusion. Even though the intention to

[1993] 1 All ER 821 at 877

bring about the patient's death is there, there is no proposed guilty act because, if it is not
in the interests of an insentient patient to continue the life-supporting care and treatment,
the doctor would be acting unlawfully if he continued the care and treatment and would
perform no guilty act by discontinuing.

I have no difficulty in accepting both this legal conclusion and its practical effect, but it
is not hard to see how the case might appear to a non-lawyer, who might express himself
on the following lines: 'Yes, I understand the point, now that you have explained it to
me. There is no duty, or indeed right, to feed when feeding is not in the best interests of
the patient. But the real reason for withdrawing feeding is that the doctors consider that it
would be in the patient's best interests for him to be allowed to die. (I also know that the
same result could be achieved, if not so quickly, by allowing the patient's next infection
to go untreated, but that is not just the point which we have been discussing here.) The
solution here seems to me to introduce what lawyers call a distinction without a
difference: the intention is to terminate life, but the acceptable way of doing it is to
discontinue a regime which the law has said that the doctors have no duty or even right
to continue. And, incidentally, F v West Berkshire Health Authority (not that I would
venture to query your reliance on that authority) was not concerned with matters of life
and death at all. So might it not be suggested, no doubt quite wrongly, that this case is, in
effect if not in law, an example of euthanasia in action? I can of course appreciate the
arguments in a case like this for indirectly terminating the patient's life and I believe that
very many of my friends would be in favour of what is now proposed, but equally there
must be many people who, from conviction or simply by virtue of their conventional
upbringing, are unconvinced that someone who can be kept alive should be allowed to
die.'

My Lords, I have used the homely expedient of attributing these words to my

hypothetical non-lawyer in order to demonstrate the possible gap which my noble and
learned friend Lord Mustill sees between old law and new medicine and perhaps also, I
might add, new ethics. It is important, particularly in the area of criminal law which
governs conduct, that society's notions of what is the law and what is right should
coincide. One role of the legislator is to detect any disparity between these notions and to
take appropriate action to close the gap.

At all events, for the reasons already relied on by your Lordships, I, too, would dismiss
this appeal.

LORD BROWNE-WILKINSON.

My Lords; in this case the courts are asked to give the answer to two questions: whether
the Airedale NHS Trust and the physicians attending Anthony Bland may—

'(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 …'

Those are questions of law. But behind the questions of law lie moral, ethical medical
and practical issues of fundamental importance to society. As Hoffmann LJ in the Court
of Appeal emphasised, the law regulating the termination of artificial life support being
given to patients must, to be acceptable, reflect a moral attitude which society accepts.
This has led judges into the consideration of the ethical and other non-legal problems
raised by the ability to sustain life artificially

[1993] 1 All ER 821 at 878

which new medical technology has recently made possible. But in my judgment in
giving the legal answer to these questions judges are faced with a dilemma. The ability
to sustain life artificially is of relatively recent origin. Existing law may not provide an
acceptable answer to the new legal questions which it raises. Should judges seek to
develop new law to meet a wholly new situation? Or is this a matter which lies outside
the area of legitimate development of the law by judges and requires society, through the
democratic expression of its views in Parliament, to reach its decisions on the underlying
moral and practical problems and then reflect those decisions in legislation?

I have no doubt that it is for Parliament, not the courts, to decide the broader issues
which this case raises. Until recently there was no doubt what was life and what was
death. A man was dead if he stopped breathing and his heart stopped beating. There was
no artificial means of sustaining these indications of life for more than a short while.
Death in the traditional sense was beyond human control. Apart from cases of unlawful
homicide, death occurred automatically in the course of nature when the natural
functions of the body failed to sustain the lungs and the heart.

Recent developments in medical science have fundamentally affected these previous

certainties. In medicine, the cessation of breathing or of heartbeat is no longer death. By
the use of a ventilator, lungs which in the unaided course of nature would have stopped
breathing can be made to breathe, thereby sustaining the heartbeat. Those, like Anthony
Bland, who would previously have died through inability to swallow food can be kept
alive by artificial feeding. This has led the medical profession to redefine death in terms
of brain stem death, ie the death of that part of the brain without which the body cannot
function at all without assistance. In some cases it is now apparently possible, with the
use of the ventilator, to sustain a beating heart even though the brain stem, and therefore
in medical terms the patient, is dead: 'the ventilated corpse'.

I do not refer to these factors because Anthony Bland is already dead, either medically or
legally. His brain stem is alive and so is he; provided that he is artificially fed and the
waste products evacuated from his body by skilled medical care, his body sustains its
own life. I refer to these factors in order to illustrate the scale of the problem which is
presented by modern technological developments, of which this case is merely one
instance. The physical state known as death has changed. In many cases the time and
manner of death is no longer dictated by nature but can be determined by human
decision. The life of Anthony Bland, in the purely physical sense, has been and can be
extended by skilled medical care for a period of years.

To my mind, these technical developments have raised a wholly new series of ethical
and social problems. What is meant now by 'life' in the moral precept which requires
respect for the sanctity of human life? If the quality of life of a person such as Anthony
Bland is non-existent since he is unaware of anything that happens to him, has he a right
to be sustained in that state of living death and are his family and medical attendants
under a duty to maintain it? If Anthony Bland has no such right and others no such duty,
should society draw a distinction (which some would see as artificial) between adopting
a course of action designed to produce certain death, on the one hand through the lack of
food, and on the other from a fatal injection, the former being permissible and the latter
(euthanasia) prohibited? If the withdrawal of life support is legitimate in the case of
Anthony Bland, whose persistent vegetative state (PVS) is very severe, what of others in
this country also in PVS (whom we were told numbered between 1,000 and 1,500) and
others suffering from medical conditions having similar impact,

[1993] 1 All ER 821 at 879

eg the Guillain-Barré syndrome? Who is to decide, and according to what criteria, who is
to live and who to die? What rights have the relatives of the patient in taking that
decision?

In addition to these ethical questions, the new technology raises practical problems.
Given that there are limited resources available for medical care is it right to devote
money to sustaining the lives of those who are, and always will be unaware of their own
existence rather than to treating those who, in a real sense, can be benefited, eg those
deprived of dialysis for want of resources? Again, the timing of the patient's death may
have a direct impact on the rights of other parties. In the case of a patient suffering from
PVS as a result of a road accident, the amount of damages recoverable will depend on
whether the patient is kept alive or allowed to die. We were told by the Official Solicitor
that there have already been cases in which this factor has been taken into account by
relatives of the patient, though there is no question of that in the present case. Again,
rights of succession to the estate of the patient may well depend on the timing of his
death.

On the moral issues raised by this case, society is not all of one mind. Although it is
probably true that the majority would favour the withdrawal of life support in the present
case, there is undoubtedly a substantial body of opinion that is strongly opposed. The
evidence shows that the Roman Catholic church and orthodox Jews are opposed. Within
the medical profession itself there are those, including one of the very distinguished
doctors who gave evidence in this case, who draw a distinction between withholding
treatment on the one hand and withholding food and care on the other, the latter not
being acceptable. The present case is an extreme one, since Anthony Bland can
appreciate nothing whether he is alive or dead; but I have no doubt that less extreme
cases will come before the courts on which public opinion may be more sharply divided.

The position therefore, in my view, is that if the judges seek to develop new law to
regulate the new circumstances, the law so laid down will of necessity reflect judges'
views on the underlying ethical questions, questions on which there is a legitimate
division of opinion. By way of example, although the Court of Appeal in this case, in
reaching the conclusion that the withdrawal of food and Anthony Bland's subsequent
death would be for his benefit, attaches importance to impalpable factors such as
personal dignity and the way Anthony Bland would wish to be remembered but does not
take into account spiritual values which, for example, a member of the Roman Catholic
church would regard as relevant in assessing such benefit. Where a case raises wholly
new moral and social issues, in my judgment it is not for the judges to seek to develop
new, all-embracing, principles of law in a way which reflects the individual judges'
moral stance when society as a whole is substantially divided on the relevant moral
issues. Moreover, it is not legitimate for a judge in reaching a view as to what is for the
benefit of the one individual whose life is in issue to take into account the wider practical
issues as to allocation of limited financial resources or the impact on third parties of
altering the time at which death occurs.

For these reasons, it seems to me imperative that the moral, social and legal issues raised
by this case should be considered by Parliament. The judges' function in this area of the
law should be to apply the principles which society, through the democratic process,
adopts, not to impose their standards on society. If Parliament fails to act, then judge-
made law will of necessity through a gradual and uncertain process provide a legal
answer to each new question as it arises. But in my judgment that is not the best way to
proceed.

The function of the court in these circumstances is to determine this particular

[1993] 1 All ER 821 at 880

case in accordance with the existing law, and not seek to develop new law laying down a
new regimen. The result of this limited approach may be unsatisfactory, both in moral
and practical terms, but it is for Parliament to address the wider problems which the case
raises and lay down principles of law generally applicable to the withdrawal of life
support systems.

Before turning to the strict legality of what is proposed, I must say something about the
procedure adopted in this case. The application asks the court to make declarations as to
the legality of proposed future actions, ie, if granted, the declarations will purport to
decide whether the proposed discontinuance of life support will constitute a crime. In
general the court sets its face against making declarations as to the criminality of
proposed future actions. But I agree with my noble and learned friend Lord Goff of
Chieveley that in this case it is absolutely necessary to do so. The doctors; responsible
for Anthony Bland's care have reached the view that it is for his benefit to withdraw life
support but have been warned by the coroner that it may constitute a criminal offence if
they do so. In the past, doctors exercised their own discretion, in accordance with
medical ethics, in cases such as these. To the great advantage of society, they took the
responsibility of deciding whether the perpetuation of life was pointless. But there are
now present amongst the medical and nursing staff of hospitals those who genuinely
believe in the sanctity of human life, no matter what the quality of that life, and report
doctors who take such decisions to the authorities with a view to prosecution for a
criminal offence. I am not criticising such people: they are acting in accordance with
their own moral standards. But their actions have made it extremely risky for a doctor to
take a decision of this kind when his action may lie on the borderline of legality. I have
no doubt that the courts should, by declaration, provide to doctors faced with such
decisions clear rulings whether the course they propose to adopt is or is not lawful.

I turn then to the question whether, under existing law, the proposed discontinuance of
the artificial feeding of Anthony Bland would be lawful. Such discontinuance might be
unlawful because (a) it would constitute a criminal offence or (b) it will give rise to civil
liability to Anthony Bland or his personal representatives after his death.

A. CRIMINAL LIABILITY/MURDER

It is the submission of the Official Solicitor that the withdrawal of artificial feeding
would constitute murder. The Official Solicitor has been criticised for using emotive
language in this case. In my judgment this criticism is misplaced: much the most
difficult question is indeed whether the proposed course of action is, in law, murder
notwithstanding the best motives from which everyone concerned is acting.

Murder consists of causing the death of another with intent so to do. What is proposed in
the present case is to adopt a course with the intention of bringing about Anthony
Bland's death. As to the element of intention, or mens rea, in my judgment there can be
no real doubt that it is present in this case: the whole purpose of stopping artificial
feeding is to bring about the death of Anthony Bland.

As to the guilty act, or actus reus, the criminal law draws a distinction between the
commission of a positive act which causes death and the omission to do an act which
would have prevented death. In general an omission to prevent death is not an actus reus
and cannot give rise to a conviction for murder. But where the accused was under a duty
to the deceased to do the act which he omitted to do, such omission can constitute the
actus reus of homicide, either murder (see R v

[1993] 1 All ER 821 at 881

Gibbins (1918) 13 Cr App R 134) or manslaughter (see R v Stone [1977] 2 All ER 341,
[1977] QB 354) depending upon the mens rea of the accused. The Official Solicitor
submits that the actus reus of murder is present on two alternative grounds, viz (1) the
withdrawal of artificial feeding is a positive act of commission or (2) if what is proposed
is only an omission, the hospital and the doctors have assumed a duty to care for
Anthony Bland (including feeding him) and therefore the omission to feed him would
constitute the actus reus of murder.

1. Positive act of commission

Mr Munby QC, in his powerful but balanced argument for the Official Solicitor, submits
that the removal of the nasogastric tube necessary to provide artificial feeding and the
discontinuance of the existing regime of artificial feeding constitute positive acts of
commission. I do not accept this. Apart from the act of removing the nasogastric tube,
the mere failure to continue to do what you have previously done is not, in any ordinary
sense, to do anything positive: on the contrary it is by definition an omission to do what
you have previously done.

The positive act of removing the nasogastric tube presents more difficulty. It is
undoubtedly a positive act, similar to switching off a ventilator in the case of a patient
whose life is being sustained by artificial ventilation. But in my judgment in neither case
should the act be classified as positive, since to do so would be to introduce intolerably
fine distinctions. If, instead of removing the nasogastric tube, it was left in place but no
further nutrients were provided for the tube to convey to the patient's stomach, that
would not be an act of commission. Again, as has been pointed out (Skegg Law, Ethics
and Medicine (1985) p 169ff), if the switching off of a ventilator were to be classified as
a positive act, exactly the same result can be achieved by installing a time-clock which
requires to be reset every 12 hours: the failure to reset the machine could not be
classified as a positive act. In my judgment, essentially what is being done is to omit to
feed or to ventilate: the removal of the nasogastric tube or the switching off of a
ventilator are merely incidents of that omission: see Glanville Williams Textbook of
Criminal Law (2nd edn, 1983) p 282 and Skegg p 169ff.

In my judgment, there is a further reason why the removal of the nasogastric tube in the
present case could not be regarded as a positive act causing the death. The tube itself,
without the food being supplied through it, does nothing. The removal of the tube by
itself does not cause the death since by itself it did not sustain life. Therefore even if,
contrary to my view, the removal of the tube is to be classified as a positive act, it would
not constitute the actus reus of murder since such positive act would not be the cause of
death.

2. Omission: duty to provide care

Mr Munby submits that, by starting to treat Anthony Bland as a patient and instituting a
regime of artificial feeding, the hospital and doctors have undertaken a duty to provide
him with medical care and food for an indefinite period. That being their duty, the
withdrawal of artificial feeding, even though a mere omission, will be a breach of that
duty and therefore constitute murder.

The crux of this submission is the extent of the duty owed by the hospital and the doctors
to Anthony Bland. In order to analyse the nature of that duty, it is necessary first to
consider the relationship between a doctor and a patient who, through mental disability,
is unable to consent to treatment. Any treatment given by a doctor to a patient which is
invasive (i e involves any interference with the physical integrity of the patient) is
unlawful unless done with the consent of the patient: it constitutes the crime of battery
and the tort of trespass to the

[1993] 1 All ER 821 at 882

person. Thus, in the case of an adult who is mentally competent, the artificial feeding
regime (and the attendant steps necessary to evacuate the bowels and bladder) would be
unlawful unless the patient consented to it. A mentally competent patient can at any time
put an end to life support systems by refusing his consent to their continuation. In the
ordinary case of murder by positive act of commission, the consent of the victim is no
defence. But where the charge is one of murder by omission to do an act and the act
omitted could only be done with the consent of the patient, refusal by the patient of
consent to the doing of such act does, indirectly, provide a defence to the charge of
murder. The doctor cannot owe to the patient any duty to maintain his life where that life
can only be sustained by intrusive medical care to which the patient will not consent.

How then does the matter stand in the case of a patient who, by reason of his being under
age or, like Anthony Bland, of full age but mentally disabled, is unable to give consent
to treatment? So far as minors are concerned, the guardian of the child can consent,
failing which the court, exercising the Crown's rights as parens patriae under the
wardship jurisdiction, can consent on the child's behalf. Until 1960 the court had the
same parens patriae jurisdiction over adults who were mentally incompetent. But by the
joint effect of the Mental Health Act 1959 and the revocation of the warrant under the
sign manual under which the jurisdiction of the Crown as parens patriae over those of
unsound mind was conferred on the courts, the courts ceased to have any parens patriae
jurisdiction over the person of a mentally incompetent adult, being left only with the
statutory jurisdiction over his property (as opposed to his person) conferred by the 1959
Act: see F v West Berkshire Health Authority (Mental Health Act Commission
intervening) [1989] 2 All ER 545, [1990] 2 AC 1. Although no one has been able to
explain why Parliament chose to take this course (indeed it has been suggested that it
was an accident) no step has been taken to restore to the courts the parens patriae
jurisdiction over the body of a mentally disabled adult. As a result the court, even if it
thought fit, has no power on Anthony Bland's behalf either to consent or to refuse
consent to the continuation of the invasive procedures involved in artificial feeding.

Faced with this lacuna in the law, this House in F v West Berkshire Health Authority
developed and laid down a principle, based on concepts of necessity, under which a
doctor can lawfully treat a patient who cannot consent to such treatment if it is in the
best interests of the patient to receive such treatment. In my view, the correct answer to
the present case depends on the extent of the right , to continue lawfully to invade the
bodily integrity of Anthony Bland without his consent. If in the circumstances they have
no right to continue artificial feeding, they cannot be in breach of any duty by ceasing to
provide such feeding.

What then is the extent of the right to treat Anthony Bland which can be deduced from F
v West Berkshire Health Authority? Both Lord Brandon of Oakbrook and Lord Goff
make it clear that the right to administer invasive medical care is wholly dependent upon
such care being in the best interests of the patient (see [1989] 2 All ER 545 at 557, 565–
566, 567, [1990] 2 AC 1 at 64, 75, 77). Moreover, a doctor's decision whether invasive
care is in the best interests of the patient falls to be assessed by reference to the test laid
down in Bolam v Friern Hospital Management Committee[1957] 2 All ER 118, [1957] 1
WLR 582, viz is the decision in accordance with a practice accepted at the time by a
responsible body of medical opinion? (see [1989] 2 All ER 545 at 559, 567, [1990] 2 AC
1 at 66–67, 78 per Lord Brandon and Lord Goff). In my judgment it must follow from
this that, if there comes a stage where the responsible doctor comes to the reasonable
conclusion (which accords with the views of a responsible body of medical

[1993] 1 All ER 821 at 883

opinion) that further continuance of an intrusive life support system is not in the best
interests of the patient, he can no longer lawfully continue that life support system: to do
so would constitute the crime of battery and the tort of trespass to the person. Therefore
he cannot be in breach of any duty to maintain the patient's life. Therefore he is not
guilty of murder by omission.

3. What is the correct question?

If I am right so far in my analysis, the critical decision to be made is whether it is in the

best interests of Anthony Bland to continue the invasive medical care involved in
artificial feeding. That question is not the same as, 'Is it in Anthony Bland's best interests
that he should die?' The latter question assumes that it is lawful to perpetuate the
patient's life; but such perpetuation of life can only be achieved if it is lawful to continue
to invade the bodily integrity of the patient by invasive medical care. Unless the doctor
has reached the affirmative conclusion that it is in the patient's best interest to continue
the invasive care, such care must cease.

The answer to the question must of course depend on the circumstances of each case and
there will be no single 'right' answer. Different doctors may take different views both on
strictly medical issues and the broader ethical issues which the question raises. It follows
that the legal question in this case (unlike the question which would arise if there were a
parens patriae jurisdiction under which the court has to make the decision) is not whether
the court thinks it is in the best interests of Anthony Bland to continue to receive
intrusive medical care but whether the responsible doctor has reached a reasonable and
bona fide belief that it is not. The doctor's answer may well be influenced by his own
attitude to the sanctity of human life. In cases where there is no strictly medical point in
continuing care, if a doctor holds the view that the patient is entitled to stay alive,
whatever the quality of such life, he can quite reasonably reach the view that the
continuation of intrusive care, being the only way of preserving such life, is in the
patient's best interests. But, in the same circumstances another doctor who sees no merit
in perpetuating a life of which the patient is unaware can equally reasonably reach the
view that the continuation of invasive treatment is not for the patient's benefit.
Accordingly, on an application to the court for a declaration that the discontinuance of
medical care will be lawful, the court's only concern will be to be satisfied that the
doctor's decision to discontinue is in accordance with a respectable body of medical
opinion and that it is reasonable.

4. The answer to the question

Anthony Bland has been irreversibly brain damaged: the most distinguished medical
opinion is unanimous that there is no prospect at all that the condition will change for the
better. He is not aware of anything. If artificial feeding is continued, he will feel nothing;
if artificial feeding is discontinued and he dies he will feel nothing. Whether he lives or
dies he will feel no pain or distress. All the purely physical considerations indicate that it
is pointless to continue life support. Only if the doctors responsible for his care held the
view that, though he is aware of nothing, there is some benefit to him in staying alive,
would there be anything to indicate that it is for his benefit to continue the invasive
medical care. In Anthony Bland's case, the doctors do not take that view. The
discontinuance of life support would be in accordance with the proposals contained in
the discussion paper on Treatment of Patients in Persistent Vegetative State issued in
September 1992 by the medical ethics committee of the British Medical Association.
Therefore the Bolam requirement is satisfied.

[1993] 1 All ER 821 at 884

In these circumstances, it is perfectly reasonable for the responsible doctors to conclude

that there is no affirmative benefit to Anthony Bland in continuing the invasive medical
procedures necessary to sustain his life. Having so concluded, they are neither entitled
nor under a duty to continue such medical care. Therefore they will not be guilty of
murder if they discontinue such care.

B. CIVIL LIABILITY

The discontinuance of life support could expose the plaintiffs to a liability in tort to
Anthony Bland or, more realistically, to his personal representatives. But such liability
would have to be founded on a breach of some duty owed by them to Anthony Bland to
maintain such life support. For the reasons which I have given in dealing with criminal
liability, no such breach of duty can exist in this case. Therefore the discontinuance of
life support will also be lawful under civil law.

I am very conscious that I have reached my conclusions on narrow, legalistic, grounds

which provide no satisfactory basis for the decision of cases which will arise in the
future where the facts are not identical. I must again emphasise that this is an extreme
case where it can be overwhelmingly proved that the patient is and will remain insensate:
he neither feels pain from treatment nor will feel pain in dying and has no prospect of
any medical care improving his condition. Unless, as I very much hope, Parliament
reviews the law, the courts will be faced with cases where the chances of improvement
are slight, or the patient has very slight sensate awareness. I express no view on what
should be the answer in such circumstances: my decision does not cover such a case. I
therefore consider that, for the foreseeable future, doctors would be well advised in each
case to apply to the court for a declaration as to the legality of any proposed
discontinuance of life support where there has been no valid consent by or on behalf of
the patient to such discontinuance.

Finally, the conclusion I have reached will appear to some to be almost irrational. How
can it be lawful to allow a patient to die slowly, though painlessly, over a period of
weeks from lack of food but unlawful to produce his immediate death by a lethal
injection, thereby saving his family from yet another ordeal to add to the tragedy that has
already struck them? I find it difficult to find a moral answer to that question. But it is
undoubtedly the law and nothing I have said casts doubt on the proposition that the
doing of a positive act with the intention of ending life is and remains murder.

LORD MUSTILL.

My Lords, the pitiful state of Anthony Bland and the suffering of his devoted family
must attract the sympathy of all. The devotion to duty of the medical staff, and the
complete propriety of those who have faced up to the painful dilemma must equally
attract the respect of all. This combination of sympathy and respect can but yield an
urgent desire to take up the burden, to reach a conclusion on this deep moral issue of life
and death, and to put that conclusion into effect as speedily and humanely as possible.
The compelling nature of this task does however have its own risks, for it leads to an
assumption that the central question of ethics is the only question, and that anything
which stands in the way of a solution should be brushed aside as an empty technicality.
However natural this impulse may be I believe that it must be resisted, for the authority
of the state, through the medium of the court, is being invoked to permit one group of its
citizens to terminate the life of another. Thus, although the issues spring from a private
grief and the course which is proposed is also private, in the sense that it will not be put
into effect by the state, we are

[1993] 1 All ER 821 at 885

nevertheless here in the field of public law. The court must therefore be concerned not
only to find a humane and morally justified solution to the problems of those directly
involved, but also to examine rigorously both the process by which the solution is
reached and the legal foundation on which it rests. Otherwise, the pressures created by
this very extreme case may distort the law in a way which leads to false conclusions in
situations where the issues are similar but more finely balanced, and may in addition
create unforeseen anomalies in criminal cases far removed from the present. This appeal
obviously raises acute problems of ethics, but this should not obscure the fact that it is
also exceptionally difficult in point of law, and it is essential that these difficulties
should be clearly recognised and objectively analysed, not in a spirit of obstruction or
pedantry, but because they are an inescapable part of any decision on whether the
declarations made in the High Court should be allowed to stand.

Accordingly I shall concentrate in what follows on the legal rather than the ethical
aspects of the appeal, although I have of course given the latter the most careful and
anxious consideration. The moral issues have already been extensively discussed. I agree
with the conclusion of all those who have delivered judgments in the case that the
declarations ought to stand and I also agree broadly, although not necessarily in every
detail, with the way in which that conclusion has been reached. Rather than traverse the
same ground again in different language I think it more useful to concentrate on two
important matters which received comparatively little attention in the courts below. First,
the role of the court, that is the nature of the function which the court is being called
upon to perform, and the suitability of the court to perform it. Second, the consistency of
the steps authorised by the two declarations now under appeal (which I will call 'the
proposed conduct') with the existing criminal law. In placing these matters firmly before
the House the Official Solicitor, through the medium of Mr Munby QC, has performed a
most valuable service.

When performing this task it is essential to face up squarely to the true nature of what is
proposed, and to have in mind what has been called 'the distinction between the right to
choose one's own death and the right to choose someone else's': see 'Medical technology
and the law' (1989) 103 Harv LR 1519 at 1665n. Emollient expressions such as 'letting
nature take its course' and 'easing the passing' may have their uses, but they are out of
place here, for they conceal both the ethical and the legal issues, and I will try to avoid
them. I will also abstain from debate about whether the proposed conduct will amount to
euthanasia. The word is not a term of art, and what matters is not whether the
declarations authorise euthanasia, but whether they authorise what would otherwise be
murder. I will say only this. The conclusion that the declarations can be upheld depends
crucially on a distinction drawn by the criminal law between acts and omissions, and
carries with it inescapably a distinction between, on the one hand what is often called
'mercy killing', where active steps are taken in a medical context to terminate the life of a
suffering patient, and a situation such as the present, where the proposed conduct has the
aim for equally humane reasons of terminating the life of Anthony Bland by withholding
from him the basic necessities of life. The acute unease which I feel about adopting this
way through the legal and ethical maze is I believe due in an important part to the
sensation that however much the terminologies may differ the ethical status of the two
courses of action is for all relevant purposes indistinguishable. By dismissing this appeal
I fear that your Lordships' House may only emphasise the distortions of a legal structure
which is already both morally and intellectually misshapen. Still, the law is there and we
must take it as it stands.

[1993] 1 All ER 821 at 886

I. THE ROLE OF THE COURT

The issues now before the House fall into three groups. (1) Is it right, as a matter of
general ethical principle, that the lives of persons in the position of Anthony Bland
should be brought to an end, and if so is it right that they should be brought to an end in
the manner proposed? (2) Under the law as it now stands, can the proposed conduct be
put into effect without committing a criminal offence, and particularly the offence of
murder? (3) If the answer to the second question is 'Yes, provided that certain conditions
are shown to exist', do those conditions exist in the case of Anthony Bland?

What is the function of the courts in relation to these groups of issues? It is convenient to
begin with the third. If the criteria for the legitimacy of the proposed conduct are
essentially factual, a decision upon them is one which the court is well accustomed to
perform, and may properly be obtained through the medium of an application for
declaratory relief. If however they contain an element of ethical judgment, for example if
the law requires the decision-maker to consider whether a certain course is 'in the best
interests' of the patient, the skill and experience of the judge will carry him only so far.
They will help him to clear the ground by marshalling the considerations which are said
to be relevant, eliminating errors of logic, and so on. But when the intellectual part of the
task is complete and the decision-maker has to choose the factors which he will take into
account, attach relevant weights to them and then strike a balance the judge is no better
equipped, though no worse, than anyone else. In the end it is a matter of personal choice,
dictated by his or her background, upbringing, education, convictions and temperament.
Legal expertise gives no special advantage here.

Questions within the second group are entirely within the province of the courts. It is
these questions which have exercised the family and all those in the medical and nursing
professions who have cared for Anthony Bland and given advice on his case. (For
brevity, I will call these 'the doctors'.) As I understand the position they have all, with
heavy hearts, taken the ethical decision that since their efforts have run their course it is
better from every point of view that Anthony Bland's life should be brought to an end.
But they wish to act within the law, and the very proper warning given by the coroner
has been taken to heart. It is therefore natural that they should turn to the court for
authority to do what they believe to be best. It is also natural that the court should wish
to do everything proper to ensure that the doctors act, as they themselves wish to act,
only in accordance with the law. No sensible person could want the doctors to take the
risk of having to validate their conduct after the event in the context of a trial for murder.

Because all this is perfectly natural, everyone concerned has pressed ahead without I
believe having analysed at all closely just what it is the court is being required to do.
Very many applications to the Family Division raise issues of what is essentially social
management, as for example where the court decides whether, in the light of guidance
given by the appellate courts as to the correct general approach, it is better for a child to
go to one parent rather than the other. The present case is quite different, for the
declarations under appeal assume the answers to a set of hypothetical questions of
criminal law. Not of course hypothetical through being divorced from real life, but
hypothetical because they put in suit the criminal consequences of conduct which not
only has not happened but never will happen, if the present appeal succeeds. We are thus
embarked on a kind of proleptic criminal trial, without charge, jury or verdict.

My Lords, no procedure exists, nor so far as I am aware has one ever been

[1993] 1 All ER 821 at 887

proposed, for conducting such an inquiry before the criminal courts. Not only would the
notion that it is a proper function of the criminal courts to provide a decision, intended to
be legally binding as to the future, on the criminality of acts or omissions as yet only in
contemplation be rejected out of hand, but there exists no mechanism which would
enable an application for this purpose even to be brought before the court. Yet we find
that the present proceedings have been brought in the Family Division without demur,
and that the extremely important questions of the criminal law to which they give rise
have reached your Lordships' House not through the criminal appellate system but
through the civil.

My Lords, by raising this point I am not of course suggesting that your Lordships should
allow this appeal because the procedure adopted was impermissible. The appeal has
reached this House, and your Lordships must decide it. Anything else would be
unthinkable in human terms. Nor do I suggest that the grant of declarations as to
criminality can never be granted in civil cases. The principle so strongly urged in
Imperial Tobacco Ltd v A-G [1980] 1 All ER 866, [1981] AC 718 is, as was there
acknowledged, subject to exception, and this is an exceptional case. Nor am I troubled
by the fact that the decision in the present case does not create an issue estoppel in the
criminal courts and therefore does not form a conclusive bar to any future prosecution. I
think it a great pity that the Attorney General did not appear in these proceedings
between private parties to represent the interests of the state in the maintenance of its
citizens' lives and in the due enforcement of the criminal law, for although Mr Munby
for the Official Solicitor and Mr Lester QC as amicus curiae have made invaluable
submissions they were here in a different interest. Nevertheless it would be fanciful to
suppose that if this appeal is dismissed and the proposed conduct goes ahead the
prosecuting authorities would even think of starting proceedings against the doctors.
What troubles me is very different.

In the first place, whilst the members of the House have all picked a way through the
minefields of the existing law to the conclusion that the proposed conduct is lawful, it
would in my opinion be too optimistic to suppose that this is the end of the matter, and
that in the future the doctors (or perhaps the judges of the High Court) will be able
without difficulty to solve all future cases by ascertaining the facts and applying to them
the precepts established in the speeches delivered today. The dozens of cases in the
American courts have shown that the subject is too difficult, and the situations too
diverse, for the law to be settled by a single appeal. I foresee that the appellate courts
will be visited again, and that we shall find important areas of the criminal law in the
course of elaboration through declaratory relief in the civil courts. Whilst I do not say
that this is technically impossible it may not be the right way ahead. At all events I think
it plain that the court is engaged on an unusual task and that it will be necessary to be
sure, before this procedure becomes firmly established, just how it is that the civil courts
can do in a criminal matter what the criminal courts themselves cannot do. The present
appeal is not the right vehicle for this task, but since the House is invited to uphold the
declarations granted in the High Court it is I believe necessary to consider what their
effect will be. Three possibilities have been canvassed.

(1) The effect of the declarations is to change the legal status of the proposed conduct in
this particular case. On this view, even if the proposed conduct would have been
unlawful without the decision of the court the declarations have made it lawful. This
could be accomplished either by enlarging the category of proper medical treatment,
which already stands outside the criminal law, so as to include a termination of life
which the court has sanctioned in advance, or alternatively

[1993] 1 All ER 821 at 888

(and perhaps it comes to much the same) by altering the content of the doctors' duty to
maintain life in cases where declarations such as the present have been made. This
proposition would require a change in the law which I would hesitate long before
indorsing, but the matter need not be further pursued, since it became plain during
argument that none of the counsel were advocating this route.

(2) The effect of the declaration, upheld by your Lordships' House, would be to create,
through a binding precedent, a new common law exception to the offence of murder,
which in future would not only bind all courts faced with criminal proceedings arising
from the termination of life for medical reasons, but would also form a point of growth
for the development of the criminal law in new and at present unforeseeable directions.
This approach would have the great attraction of recognising that the law has been left
behind by the rapid advances of medical technology. By starting with a clean slate the
law would be freed from the piecemeal expedients to which courts throughout the
common law world have been driven when trying to fill the gap between old law and
new medicine. It has however been rightly acknowledged by counsel that this is a step
which the courts could not properly take. Any necessary changes would have to take
account of the whole of this area of law and morals, including of course all the issues
commonly grouped under the heading of euthanasia. The formulation of the necessary
broad social and moral policy is an enterprise which the courts have neither the means
nor in my opinion the right to perform. This can only be achieved by democratic process
through the medium of Parliament.

(3) The declarations will simply apply the law as it now stands to the undisputed facts of
the present case. By upholding them the House will bind all courts charged in the future
with a similar task to approach it in the same way. The declarations will not however
alter the legal status of the proposed conduct from what it would have been even if no
declarations had been sought, nor will it make any change in the existing criminal law.
The declarations will therefore achieve no more in the present case than the useful but
limited function of reassuring the doctors that what they wish to do was lawful when
proposed and will be lawful when carried out, and will as a by-product ensure that in
practice if the proposed conduct goes ahead no prosecution will ensue. I will not repeat
what I have said about the unusual nature of this process, which must I believe be carried
out by supposing that the doctors have already put into effect their proposals, have been
charged with murder and are now in the course of obtaining a ruling on whether on the
undisputed facts they have a good defence.

My Lords, a little while ago I suggested that the present appeal raised three questions.
Having discussed the nature of the second and third, I turn to the first which asks
whether it is right to terminate the lives of persons in the position of Anthony Bland, and
in particular whether it is right that this should be done in the manner proposed. (I
mention the latter question because it is a striking fact that in 20 out of the 39 American
states which have legislated in favour of 'living wills' the legislation specifically
excludes termination of life by the withdrawal of nourishment and hydration.) These are
only fragments of a much wider nest of questions, all entirely ethical in content,
beginning with the most general: 'Is it ever right to terminate the life of a patient, with or
without his consent?' I believe that adversarial proceedings, even with the help of an
amicus curiae, are not the right vehicle for the discussion of this broad and highly
contentious moral issue, nor do I believe that the judges are best fitted to carry it out. On
the latter aspect I would adopt the very blunt words of Scalia J in Cruzan v Director,
Missouri Dept of Health (1990) 110 S Ct 2841 at 2859, where a very similar problem
arose in a

[1993] 1 All ER 821 at 889

different constitutional and legal framework. These are problems properly decided by the
citizens, through their elected representatives, not by the courts.
My Lords, I believe that I have said enough to explain why, from the outset, I have felt
serious doubts about whether this question is justiciable, not in the technical sense, but in
the sense of being a proper subject for legal adjudication. The whole matter cries out for
exploration in depth by Parliament and then for the establishment by legislation not only
of a new set of ethically and intellectually consistent rules, distinct from the general
criminal law, but also of a sound procedural framework within which the rules can be
applied to individual cases. The rapid advance of medical technology makes this an ever
more urgent task, and I venture to hope that Parliament will soon take it in hand.
Meanwhile, the present case cannot wait. We must ascertain the current state of the law
and see whether it can be reconciled with the conduct which the doctors propose.

II. THE LEGAL FRAMEWORK

Since it is common ground that the function of the court on this appeal is to apply and if
necessary develop the existing law, rather than create entirely new exceptions to the law
of murder, it is convenient to begin by taking stock.

1. Consent to bodily invasion Any invasion of the body of one person by another is
potentially both a crime and a tort. At the bottom end of the scale consent is a defence
both to a charge of common assault and to a claim in tort. The concentration in most
discussions of this topic on this end of the scale has tended to divert attention from the
fact that whatever the scope of the civil defence of volenti non fit injuria there is a point
higher up the scale than common assault at which consent in general ceases to form a
defence to a criminal charge. The precise location of this point is at present under
consideration by another committee of your Lordships' House in R v Laskey and ors and
I need not explore it here, but that the point exists is beyond question. If one person cuts
off the hand of another it is no answer to say that the amputee consented to what was
done.

2. Proper medical treatment How is it that, consistently with the proposition just stated, a
doctor can with immunity perform on a consenting patient an act which would be a very
serious crime if done by someone else? The answer must be that bodily invasions in the
course of proper medical treatment stand completely outside the criminal law. The
reason why the consent of the patient is so important is not that it furnishes a defence in
itself, but because it is usually essential to the propriety of medical treatment. Thus, if
the consent is absent, and is not dispensed with in special circumstances by operation of
law, the acts of the doctor lose their immunity.

3. Paramountcy of the patient's choice If the patient is capable of making a decision on

whether to permit treatment and decides not to permit it his choice must be obeyed, even
if on any objective view it is contrary to his best interests. A doctor has no right to
proceed in the face of objection, even if it is plain to all, including the patient, that
adverse consequences and even death will or may ensue.

4. Cessation of treatment Thus it is that the patient who is undergoing life-maintaining

treatment and decides that it would be preferable to die must be allowed to die, provided
that all necessary steps have been taken to be sure that this is what he or she really
desires.

5. Emergencies Although the consent of the patient is normally essential to the immunity
of the doctor from criminal (and also from civil) process there are occasions when the
law permits him to proceed without it. Notably, where

[1993] 1 All ER 821 at 890

urgent action is imperative in the interests of the patient, and because the patient is
unconscious, or disorientated, or for some other reason the consent cannot be obtained
until it is too late.

6. Necessity In F v West Berkshire Health Authority (Mental Health Act Commission

intervening) [1989] 2 All ER 545, [1990] 2 AC 1 your Lordships' House has extended
this general exception to the special situation where the patient is permanently
incapacitated from making any decision about treatment. In that case, the nature of the
bodily invasion was such that unless the acts of the doctors fell into the special category
of proper medical treatment they would have amounted to a most serious crime. If the
patient had been capable of deciding whether or not she wished to be treated, and had
either not been asked for her consent or had refused it, the doctors would have been
criminally liable since consent is normally an essential element in proper medical
treatment. As matters stood, however, the patient was incapable of making a decision, so
that to abstain from proceeding without her consent would mean that a decision against
treatment would have been taken by default. The necessity for a decision to be made,
one way or the other, coupled with her inability to make it enabled treatment to be made
in what was considered her best interest.

7. Murder It has been established for centuries that consent to the deliberate infliction of
death is no defence to a charge of murder. Cases where the victim has urged the
defendant to kill him and the defendant has complied are likely to be rare, but the
proposition is established beyond doubt by the law on duelling, where even if the
deceased was the challenger his consent to the risk of being deliberately killed by his
opponent does not alter the case.

8. 'Mercy killing' Prosecutions of doctors who are suspected of having killed their
patients are extremely rare, and direct authority is in very short supply. Nevertheless,
that 'mercy killing' by active means is murder was taken for granted in the directions to
the jury in R v Adams (Bodkin) [1957] Crim LR 365, R v Arthur (1981) Times, 5
November, Farquharson J) and R v Cox (18 September 1992, unreported), was the
subject of direct decision by an appellate court in Barber v Superior Court of Los
Angeles County (1983) 147 Cal App 3d 1006 and has never so far as I know been
doubted. The fact that the doctor's motives are kindly will for some, although not for all,
transform the moral quality of his act, but this makes no difference in law. It is intent to
kill or cause grievous bodily harm which constitutes the mens rea of murder, and the
reason why the intent was formed makes no difference at all.

9. Consent to 'mercy killing' far as I am aware no satisfactory reason has ever been
advanced for suggesting that it makes the least difference in law, as distinct from morals,
if the patient consents to or indeed urges the ending of his life by active means. The
reason must be that, as in the other cases of consent to being killed, the interest of the
state in preserving life overrides the otherwise all-powerful interest of patient autonomy.

10. Acts and omissions The English criminal law, and also it would appear from the
cases cited, the law of transatlantic state jurisdictions, draws a sharp distinction between
acts and omissions. If an act resulting in death is done without lawful excuse and with
intent to kill it is murder. But an omission to act with the same result and with the same
intent is in general no offence at all. So also with lesser crimes. To this general principle
there are limited statutory exceptions, irrelevant here. There is also one important
general exception at common law, namely that a person may be criminally liable for the
consequences of an omission if he stands in such a relation to the victim that he is under
a duty to act. Where the result is death the offence will usually be manslaughter, but if
the necessary intent is proved it will be murder: see R v Gibbins (1918) 13 Cr App R
134.

[1993] 1 All ER 821 at 891

Precisely in what circumstances such a duty should be held to exist is at present quite
unclear. No doubt it would be too stern a morality to place human beings on the same
footing as regards criminal responsibility for allowing an undesirable state of affairs to
continue as for bringing that state of affairs into being, but even if there is sense in the
distinction the current state of the law is unsatisfactory both morally and intellectually,
as shown by the troubling case of R v Stone [1977] 2 All ER 341, [1977] QB 354. We
cannot however try to put it in order here. For the time being all are agreed that the
distinction between acts and omissions exists, and that we must give effect to it.

My Lords, this sketch of the law immediately brings forward two very difficult
questions. The first is this. A doctor who kills his patient even with the consent of the
patient is guilty of murder. Plainly a second doctor who kills his patient in circumstances
where the obtaining of consent is impracticable cannot be in a better position than the
first, even if the termination of life is in the best interests of the patient; for the
combination of necessity and best interests is no more than a replacement for consent.
How then can best interests legitimate the conduct proposed in the present case? The
second question requires a comparison between this case and R v Gibbins. In the latter
the appellant had a helpless person in her care; because that person was helpless, she
could not furnish herself with nourishment and was dependent for it on the appellant; the
appellant intended to bring about the death of the helpless person by withholding
nourishment; she did so, and the helpless person died. Of course the cases are miles apart
from an ethical standpoint, but where is the difference on the essential facts?

These and kindred questions have given rise to an extensive and understandably
contentious literature, and to thoughtful discussions in the courts of the United States,
Canada and New Zealand, and no doubt elsewhere. It is impossible to study it all, but the
sources placed before the House, supplemented by a few others, have been sufficient to
bring out the main lines of the possible arguments. I gratefully acknowledge the great
help which this material has furnished, without thinking it necessary to give any but the
barest of citation in what follows.

It is convenient now to discuss in turn the grounds upon which it might be held that,
under the existing law, and independently of the intervention of the court, the doctors
may lawfully put the proposed conduct into effect.

III. POTENTIAL DEFENCES

1. Attenuation of the interest in preserving life
The interest of the state in preserving the lives of its citizens is very strong, but it is not
absolute. There are contrary interests, and sometime these prevail; as witness the over-
mastering effect of the patient's refusal of treatment, even where this makes death
inevitable. It has been suggested, for example in Re Quinlan (1976) 70 NJ 10, that the
balance may also be tipped, not by the weight of an opposing policy but by the
attenuation of the interest in preserving life, where the 'quality' of the life is diminished
by disease or incapacity. My Lords, I would firmly reject this argument. If correct it
would validate active as well as passive euthanasia, and thus require a change in the law
of murder. In any event whilst the fact that a patient is in great pain may give him or her
a powerful motive for wanting to end it, to which in certain circumstances it is proper to
accede, that is not at all the same as the proposition that because of incapacity or
infirmity one life is intrinsically worth less than another. This is the first step on a very
dangerous road indeed, and one which I am not willing to take.

2. The patient's choice

In the majority of cases where the American courts have sanctioned the

[1993] 1 All ER 821 at 892

withdrawal of life-supporting medical care they have done so by developing the rule that
informed consent can release the doctor from his duty to treat. For this purpose they have
founded upon the constitutional rights of the patient, either the express right of due
process or the still developing implied right of privacy. It is unnecessary to explore
whether a similar approach would be appropriate in England, where constitutional rights
play a much less theoretically important role, for I cannot see that the doctrine has
anything to offer in the present case. It is perhaps sufficient to say that it takes two
forms. In the first, the court looks for the making of an antecedent choice by a patient
who can no longer make one, or communicate one, by the time that the question of
termination has arisen. What is often called a 'living will' has been held sufficient for this
purpose. If no explicit choice has been made, the courts have on occasion felt able to
infer from other evidence what they believe were the general feelings of the patient
about termination of life in the case of incurable illness. In any event since there is no
evidence that Anthony Bland ever thought or said anything on the subject the question of
making an imputed choice does not arise. Whilst this course is in many ways attractive
there are obvious dangers which may well be felt to justify the cautious attitude adopted
by the courts of New York State in cases such as Re Storar, re Eichner (1981) 52 NY 2d
363.

The second method, which is adopted if the evidence is insufficient to justify an

inference of what the patient chose in the past so that it can be projected to the present,
involves the appointment of a surrogate to make on behalf of the patient the choice
which he believes the patient would now make if able to do so. For this purpose the
surrogate builds up a picture of the patient's former character, feelings, convictions and
so on from which the putative choice is deduced. This process may perhaps have some
justification where the patient is sentient but unable to communicate a choice, but it
breaks down totally in a case such as the present. To postulate a patient who is in such a
condition that he cannot know that there is a choice to be made, or indeed know anything
at all, and then ask whether he would have chosen to terminate his life because that
condition made it no longer worth living is surely meaningless, as is very clearly shown
by the lengths to which the court was driven in Belchertown State School Superintendent
v Saikewicz (1977) 373 Mass 728. The idea is simply a fiction, which I would not be
willing to adopt even if there were in the case of Anthony Bland any materials upon
which a surrogate could act, which as far as I can see there are not.

3. Causation

One argument in support of the conclusion that if the proposed conduct is carried out and
Anthony Bland then dies the doctors will nevertheless be guilty of no offence depends
upon a very special application of the doctrine of causation. This has powerful academic
support: Skegg Law, Ethics and Medicine (1985) ch 6, where it represents the author's
chosen solution, and also Glanville Williams Textbook of Criminal Law (2nd edn, 1983)
pp 282–283 and Professor Ian Kennedy's paper Treat me Right, Essays in Medical Law
and Ethics (1988) pp 360–361, where it is offered by way of alternative. Nevertheless I
find it hard to grasp. At several stages of his discussion Professor Skegg frankly accepts
that some manipulation of the law of causation will be needed to produce the desired
result. I am bound to say that the argument seems to me to require not manipulation of
the law so much as its application in an entirely new and illogical way. In one form the
argument presented to the House asserts that for the purpose of both civil and criminal
liability the cause of Anthony Bland's death, if and when it takes place, will be the
Hillsborough disaster. As a matter of the criminal law of causation

[1993] 1 All ER 821 at 893

this may well be right, once it is assumed that the conduct is lawful: see R v Blaue
[1975] 3 All ER 446, [1975] 1 WLR 1411, R v Malcherek [1981] 2 All ER 422, [1981] 1
WLR 690 and Finlayson v HM Advocate 1979 JC 33. It does not perhaps follow that the
conduct of the doctors is not also causative, but this is of no interest since if the conduct
is lawful the doctors have nothing to worry about. If on the other hand the proposed
conduct is unlawful, then it is in the same case as active euthanasia or any other unlawful
act by doctors or laymen. In common sense they must all be causative or none; and it
must be all, for otherwise euthanasia would never be murder.

A variant of the argument appears to put the ordinary law of causation into reverse.
Normally, when faced with an act and a suggested consequence one begins by
ascertaining the quality of the act and then, if it is found to be unlawful, one considers its
connection to the consequence. This variant, by contrast, seems to begin the inquiry with
the connection and then by applying a special rule of causation determine the character
of the act. I confess that I cannot understand what mechanism enables this to be done. If
the declarations are wrong and the proposed conduct is unlawful it is in my judgment
perfectly obvious that the conduct will be, as it is intended to be, the cause of death, and
nothing in the literature or the reported cases from other jurisdictions persuades me to
any other conclusion. I should add that, although part of the thoughtful judgment of
Thomas J in the High Court of New Zealand in Auckland Area Health Board v A-G
[1993] 1 NZLR 235 discusses the question of causation, the main thrust of the reasoning
was aimed elsewhere, towards a solution which is broadly in line with the one which all
your Lordships have preferred.

4. Best interests of the community

Threaded through the technical arguments addressed to the House were the strands of a
much wider position, that it is in the best interests of the community at large that
Anthony Bland's life should now end. The doctors have done all they can. Nothing will
be gained by going on and much will be lost. The distress of the family will get steadily
worse. The strain on the devotion of a medical staff charged with the care of a patient
whose condition will never improve, who may live for years and who does not even
recognise that he is being cared for, will continue to mount. The large resources of skill,
labour and money now being devoted to Anthony Bland might in the opinion of many be
more fruitfully employed in improving the condition of other patients, who if treated
may have useful, healthy and enjoyable lives for years to come.

This argument was never squarely put, although hinted at from time to time. In social
terms it has great force, and it will have to be faced in the end. But this is not a task
which the courts can possibly undertake. A social cost-benefit analysis of this kind,
which would have to embrace 'mercy killing', to which exactly the same considerations
apply, must be for Parliament alone, and the outcome of it is at present quite impossible
to foresee. Until the nettle is grasped we must struggle on with the existing law,
imperfect as it is.

5. Best interests: the termination of life

An alternative approach is to develop the reasoning of F v West Berkshire Health

Authority [1989] 2 All ER 545, [1990] 2 AC 1 by concentrating on the best interests, not
of the community at large, but of Anthony Bland himself. Just as in F v West Berkshire
Health Authority, so the argument runs, the best interests of the patient demand a course
of action which would normally be unlawful without the patient's consent. Just as in F v
West Berkshire Health Authority the patient is

[1993] 1 All ER 821 at 894

unable to decide for himself. In practice, to make no decision is to decide that the care
and treatment shall continue. So that the decision shall not thus be made by default it is
necessary that someone other than Anthony Bland should consider whether in his own
best interests his life should now be brought to an end, and if the answer is affirmative
the proposed conduct can be put into effect without risk of criminal responsibility.

I cannot accept this argument, which, if sound, would serve to legitimate a termination
by much more direct means than are now contemplated. I can accept that a doctor in
charge of a patient suffering the mental torture of Guillain-Barré syndrome, rational but
trapped and mute in an unresponsive body, could well feel it imperative that a decision
on whether to terminate life could wait no longer and that the only possible decision in
the interests of the patient, even leaving out all the other interests involved, would be to
end it here and now by a speedy and painless injection. Such a conclusion would attract
much sympathy, but no doctrine of best interests could bring it within the law.

Quite apart from this the case of Anthony Bland seems to me quite different. He feels no
pain and suffers no mental anguish. Stress was laid in argument on the damage to his
personal dignity by the continuation of the present medical regime, and on the
progressive erosion of the family's happy recollections by month after month of
distressing and hopeless care. Considerations of this kind will no doubt carry great
weight when Parliament comes to consider the whole question in the round. But it seems
to me to be stretching the concept of personal rights beyond breaking point to say that
Anthony Bland has an interest in ending these sources of others' distress. Unlike the
conscious patient he does not know what is happening to his body, and cannot be
affronted by it; he does not know of his family's continuing sorrow. By ending his life
the doctors will not relieve him of a burden become intolerable, for others carry the
burden and he has none. What other considerations could make it better for him to die
now rather than later? None that we can measure, for of death we know nothing. The
distressing truth which must not be shirked is that the proposed conduct is not in the best
interests of Anthony Bland, for he has no best interests of any kind.

6. Best interests: the termination of treatment

After much expression of negative opinions I turn to an argument which in my judgment

is logically defensible and consistent with the existing law. In essence it turns the
previous argument on its head by directing the inquiry to the interests of the patient, not
in the termination of life but in the continuation of his treatment. It runs as follows. (i)
The cessation of nourishment and hydration is an omission not an act. (ii) Accordingly,
the cessation will not be a criminal act unless the doctors are under a present duty to
continue the regime. (iii) At the time when Anthony Bland came into the care of the
doctors decisions had to be made about his care which he was unable to make for
himself. In accordance with F v West Berkshire Health Authority [1989] 2 All ER 545,
[1990] 2 AC 1 these decisions were to be made in his best interests. Since the possibility
that he might recover still existed his best interests required that he should be supported
in the hope that this would happen. These best interests justified the application of the
necessary regime without his consent. (iv) All hope of recovery has now been
abandoned. Thus, although the termination of his life is not in the best interests of
Anthony Bland, his best interests in being kept alive have also disappeared, taking with
them the justification for the non-consensual regime and the correlative duty to keep it in
being. (v) Since there is no longer a duty to provide nourishment and hydration a failure
to do so cannot be a criminal offence.

[1993] 1 All ER 821 at 895

My Lords, I must recognise at once that this chain of reasoning makes an unpromising
start by transferring the morally and intellectually dubious distinction between acts and
omissions into a context where the ethical foundations of the law are already open to
question. The opportunity for anomaly and excessively fine distinctions, often depending
more on the way in which the problem happens to be stated than on any real
distinguishing features, has been exposed by many commentators, including in England
the authors above-mentioned, together with Smith and Hogan Criminal Law (6th edn,
1988) p 51, Beynon 'Doctors as murderers' [1982] Crim LR 17 and Gunn and Smith
'Arthur's case and the right to life of a Down's syndrome child' [1985] Crim LR 705. All
this being granted, we are still forced to take the law as we find it and try to make it
work. Moreover, although in cases near the borderline the categorisation of conduct will
be exceedingly hard, I believe that nearer the periphery there will be many instances
which fall quite clearly into one category rather than the other. In my opinion the present
is such a case, and in company with Compton J in Barber v Superior Court of Los
Angeles County (1983) 147 Cal App 3d 1006 at 1017 amongst others I consider that the
proposed conduct will fall into the category of omissions.

I therefore consider the argument to be soundly based. Now that the time has come when
Anthony Bland has no further interest in being kept alive, the necessity to do so, created
by his inability to make a choice, has gone; and the justification for the invasive care and
treatment together with the duty to provide it have also gone. Absent a duty, the
omission to perform what had previously been a duty will no longer be a breach of the
criminal law.

In reaching this conclusion I have taken into account the fact that, whereas for almost all
concerned the adoption of the proposed course will be a merciful relief, this will not be
so for the nursing staff, who will be called on to act in a way which must be contrary to
all their instincts, training and traditions. They will encounter the ethical problems, not in
a court or in a lecture room, but face to face. As the United Kingdom Council for
Nursing Midwifery and Health Visiting has emphasised, for the nurses involved the
interval between the initiation of the proposed conduct and the death of Anthony Bland
will be a very stressful period. Acknowledging this, I hope that the nurses will accept, as
I believe, that sadly it is for the best.

For these reasons I would uphold the declarations. Whilst there is no need to go further it
is better to mention one further point. The reasoning which I propose is, I believe,
broadly in line with that of your Lordships. But I venture to feel some reservations about
the application of the principle of civil liability in negligence laid down in Bolam v
Friern Hospital Management Committee [1957] 2 All ER 118, [1957] 1 WLR 582 to
decisions on 'best interests' in a field dominated by the criminal law. I accept without
difficulty that this principle applies to the ascertainment of the medical raw material such
as diagnosis, prognosis and appraisal of the patient's cognitive functions. Beyond this
point, however, it may be said that the decision is ethical, not medical, and that there is
no reason in logic why on such a decision the opinions of doctors should be decisive. If
there had been a possibility that this question might make a difference to the outcome of
the appeal I would have wished to consider it further, but since it does not I prefer for the
moment to express no opinion upon it.

IV. THE ETHICAL QUESTION

After discussing the legal issues at length I will deal only briefly with the ethical
question, which must be for most lay people what the case is really about. With

[1993] 1 All ER 821 at 896

the general tenor, if not with the details, of what was said in the courts below I
respectfully agree. But, I prefer to advance on a narrower front. In law, if my conclusion
is right, the way is clear for the doctors to proceed as they and the family think best. If
the principle of Bolam applies that is the end of the matter, since nobody could doubt
that a body of reasonable medical opinion would regard the proposed conduct as right.
But, even if Bolam is left aside, I still believe that the proposed conduct is ethically
justified, since the continued treatment of Anthony Bland can no longer serve to
maintain that combination of manifold characteristics which we call a personality. Some
who have written on this subject maintain that this is too narrow a perspective, so I must
make it clear that I do not assert that the human condition necessarily consists of nothing
 except a personality, or deny that it may also comprise a spiritual essence distinct from
both body and personality. But of this we can know nothing, and in particular we cannot
know whether it perishes with death or transcends it. Absent such knowledge we must
measure up what we do know. So doing, I have no doubt that the best interests of
Anthony Bland no longer demand the continuance of his present care and treatment. This
is not at all to say that I would reach the same conclusion in less extreme cases, where
the glimmerings of awareness may give the patient an interest which cannot be regarded
as null. The issues, both legal and ethical, will then be altogether more difficult. As Mr
Munby has pointed out, in this part of the law the court has moved a long way in a short
time. Every step forward requires the greatest caution. Here however I am satisfied that
what is proposed, and what all those who have considered the matter believe to be right,
is in accordance with the law.

My Lords, having said this I must admit to having felt profound misgivings about almost
every aspect of this case. I will not rehearse them. I need only say that I entirely agree
with and adopt everything said by my noble and learned friend Lord Browne-Wilkinson
at the conclusion of his judgment.

I would dismiss this appeal.

Appeal dismissed. No order as to costs.

Mary Rose Plummer Barrister.
[1993] 1 All ER 821 at 897