Page1 Law Quarterly Review 1997 Restoring moral and intellectual shape to the law after Bland John Keown Subject: Health. Other related subjects: Jurisprudence Keywords: Death; Ethics; Medical treatment; Termination Case: Airedale NHS Trust v Bland  A. C. 789 (HL) *L. Q. R. 481 “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 …”. (Airedale N. H. S. Trust v. Bland  A. C. 789 at p. 885 per Lord Browne-Wilkinson. ) INTRODUCTION IN Airedale N. H. S. Trust v. Bland, the House of Lords held that it was lawful for a doctor to cease tube-feeding his patient who was in a “persistent vegetative state” (pvs) even though this would inevitably lead to the patient’s death and even though, in the express opinion of a majority of their Lordships, the doctor’s intent was to kill.
The implications of the case are profound. A leading utilitarian bioethicist and advocate of euthanasia, Professor Peter Singer, has even commented that the case marks the collapse of the traditional Western ethic–the principle of the sanctity of human life. 1 There can be little doubt that the Law Lords dealt a blow to that principle and, although Singer’s comment may be overstated, the blow may yet prove fatal. Whether it does so may well depend on the readiness of their Lordships to reconsider their reasoning in Bland.
This paper respectfully argues that they should, not least because their reasoning leaves the law, as Lord Mustill commented, in a “morally and intellectually misshapen” state, prohibiting active but permitting passive medical killing. With few exceptions, notably Professor Finnis’s acute commentary in this journal,2 this cardinal case has inspired strikingly little academic analysis. The present paper suggests that the doctrine of the sanctity of ife was misrepresented, misunderstood and mistakenly rejected, and argues that the courts should, by reinstating the law’s consistent application of that doctrine, restore moral and intellectual consistency, coherence and clarity to the law. *L. Q. R. 482 The paper comprises three parts. Part I outlines three alternative ethical approaches to the valuation of human life: “vitalism”, “sanctity of life”, and “Quality of life” (the reason for the “Q” will appear later); concludes that the sanctity of life offers a middle way between two unethical extremes; and maintains that the law has historically followed this middle way.
Part II argues that the Law Lords in Bland swerved from the middle way towards the Quality of life extreme; observes that the case indeed leaves the law in a morally and intellectually misshapen state; and suggests that the swerve may well have resulted from a confusion of the doctrine of the sanctity of life with vitalism. Part III indicates how a coherent understanding of the principle of the sanctity of life, the principle at the heart of the doctrine of the sanctity of life, could have supplied a sound answer to the question raised in Bland and left the law in good shape.
I. HUMAN LIFE AND THE LAW 1. Vitalism v. sanctity of life v. quality of life Before deciding which ethical approach the law ought to take to the valuation of human life, it is important to appreciate that there are at least three competing alternatives. (i) Vitalism Vitalism holds that human life is an absolute moral value and that it is wrong either to shorten it or fail to lengthen it. Whether the life be that of an anencephalic newborn (one lacking the cerebral Page2 hemispheres) or a dying centenarian, vitalism prohibits its shortening and requires its preservation.
Regardless of the pain, suffering or expense that life-prolonging treatment entails, it must be administered: human life is to be preserved at all costs. Vitalism is as ethically untenable as its attempt to maintain life indefinitely is physically impossible. Its error lies in isolating the genuine and basic good of human life, and the duty to respect and promote that good, from the network of standards and responsibilities which make up our ethics and law as a whole; and its neglect of concepts and distinctions (such as between intention and foresight) vital to that network. ii) The sanctity of life (a) The prohibition of intentional killing The principle of the sanctity of life is often advocated but much less often understood. In Western thought, the development of the principle has owed much to the Judaeo-Christian tradition. 3 That tradition’s doctrine of the *L. Q. R. 483 sanctity of life holds that human life is created in the image of God and is, therefore, possessed of an intrinsic dignity which entitles it to protection from unjust attack.
With or without that theological underpinning, the doctrine grounds the principle that one ought never intentionally to kill an innocent human being. 4 The “right to life” is essentially a right not to be intentionally killed. The dignity of human beings inheres because of the radical capacities, such as for understanding and rational choice, inherent in human nature. Some human beings, such as infants, may not yet possess the ability to exercise these radical capacities.
But radical capacities must not be confused with abilities: one may have, for example, the radical capacity but not the ability to speak Swahili. All human being possess the capacities inherent in their nature even though, because of infancy, disability or senility, they may not yet, not now, or no longer have the ability to exercise them. 5 As this account of human dignity might suggest, the principle can also be articulated in non-religious terms, in which “inviolability” might be more apt than “sanctity”.
Indeed, a prohibition on killing is central to the pre-Christian fount of Western medical ethics–the Hippocratic Oath6 and the modern reaffirmation of that Oath by the (arguably post-Christian) Declaration of Geneva7 –and many non-believers recognise the right of human beings not to be intentionally killed. Lord Goff of Chieveley noted in Bland 8 that the sanctity principle has long been recognised in most, if not all, civilized societies throughout the modern world, as is evidenced by its recognition by international conventions on human rights.
Article 2 of the European Convention, for example, provides: “Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. ”9 The right not to be killed is enjoyed regardless of inability or disability. Rejecting any such distinctions as fundamentally arbitrary and inconsistent with a sound concept of justice, the principle (whether in its religious or secular forms) asserts that human life is not only an instrumental good, a *L.
Q. R. 484 necessary precondition of thinking or doing, but a basic good, a fundamental constituent of human flourishing. It is, in other words, not merely good as a means to an end but is, like other integral aspects of a flourishing human life, like friendship and knowledge, something worthwhile in itself. Of course some people, like those who are pictures of health in the prime of life, participate in the good of life and health to a greater extent than others, such as the terminally ill, but even the sick and the dying participate in the good to the extent they are able.
Although life is a basic good it is not an absolute good, a good to which all the other basic goods must be sacrificed in order to ensure its preservation. The sanctity doctrine is not vitalistic. The core of the doctrine is the principle prohibiting intentional killing, not an injunction requiring the preservation of life at all costs. However, although the doctrine denies that human life is an absolute good, the principle that it may never intentionally be taken is an absolute principle, that is, one which has no acceptable exceptions. Although the value of human life is not absolute, the prohibition on taking it is. b) Intention and foresight Sanctity prohibits intentional life-shortening. Conduct which is intended to shorten life–“intention” bearing its ordinary meaning of purpose –is always wrong. Conduct which may foreseeably shorten life is not always wrong. Whether it is will turn largely on whether there is a sufficient justification for Page3 taking the risk of shortening life. 10 A doctor treating a terminally-ill cancer patient suffering pain clearly has a sufficient justification for administering palliative drugs with intent to ease the pain, even though a foreseeable side-effect may or will be the shortening of life.
Similarly, a doctor may properly withhold or withdraw a life-prolonging treatment which is futile (that is, cannot secure a significant therapeutic benefit) or which the patient would find too burdensome, even though the doctor foresees that non-treatment may or will result in the patient’s life ending sooner than would otherwise be the case. Doctors may not, on the other hand, take unreasonable risks with patients’ lives. It is one thing for a doctor to perform neurosurgery to *L. Q. R. 485 remove a malignant tumour, even though the operation may prove fatal; quite another to perform it merely because the patient has a headache. c) Acts and omissions In the medical context, there are no exceptions to sanctity’s moral prohibition of intentional killing: the doctor who intentionally shortens the life of a patient, whether a terminally ill adult or a child with Down’s syndrome, breaches the principle. It matters not, moreover, whether the shortening is brought about by an act or an omission. Intentionally shortening a patient’s life by withholding treatment, or food, water or warmth, is no less wrong than injecting a lethal poison.
Nor does a good motive, such as the alleviation of suffering, of the patient or relatives, redeem a bad intent. In short any conduct which is intended to shorten a patient’s life, whether as an end or as a means to an end and whatever the further motive, offends against the principle. (d) The worthwhileness of treatment: its benefits and burdens As the above distinction between intended and foreseen life-shortening indicates, the sanctity doctrine accepts that in many cases it is perfectly proper to withhold or withdraw life-preserving treatment.
That one need not try to preserve life at all costs is sometimes amusingly expressed in the verse that while one must not kill, one “needst not strive officiously to keep alive”. More precisely, however, the sanctity principle holds that there can be no moral obligation to administer or undergo a treatment which is not worthwhile. A treatment may be not worthwhile either because it offers no reasonable hope of benefit or because, even though it does, the expected benefit would be outweighed by burdens which the treatment would impose, such as excessive pain.
Notice, however, that the question is always whether the treatment would be worthwhile, not whether the patient’s life would be worthwhile. Were one to engage in judgments of the latter sort, and to conclude that certain lives were not worth living, one would forfeit any principled basis for objecting to intentional killing. Where the benefit of a proposed treatment is not outweighed by the burdens it would impose, it has traditionally been referred to as “ordinary” and, where the converse is the case, as “extraordinary”.
Problems associated with this terminology (not least the fact that “ordinary” was often mistakenly interpreted to mean “usual” and “extraordinary” to mean “unusual”) have resulted in the increasing use of terms such as “proportionate” and “disproportionate”. But whichever terms are used, the moral question is the same: whether a proposed treatment is worthwhile, that is, whether its benefits, if any, would outweigh its burdens, if any. Take Angela, a baby born with Down’s syndrome and an intestinal blockage.
Her doctor informs her parents that the blockage can be removed *L. Q. R. 486 by a straightforward surgical operation and that, if it is not so removed, Angela will die. The doctor and parents, judging that the treatment will clearly benefit Angela by saving her life while involving only minimal burdens, such as the usual discomfort associated with the operation, decide that the operation would be worthwhile or proportionate and should be performed. Contrast Angela with Bertha, a baby born with a terminal illness which will inevitably lead to death in a matter of hours.
Her doctor informs her parents that, due to respiratory difficulties, she may stop breathing at any time and asks whether they would like attempts at artificial ventilation to be made should her breathing falter. Given that such efforts could not hope to reverse Bertha’s inevitable decline, and might impose significant burdens on her, they decide against ventilation as it would be disproportionate. In short, they decide to allow Bertha to die in peace. Yet their judgment in no way contravenes the principle of the sanctity of life; it is, indeed, an application of it.
But what if the decision in either case were made not on the basis that the proposed treatment was not worthwhile, but on the basis that the child’s life was not worthwhile? Here we encounter another extreme avoided by the sanctity doctrine: “Quality of life”, the opposite pole to vitalism. Page4 (iii) Quality of life The doctrine of the Quality of life is not concerned with assessing the worthwhileness of the treatment but with the worthwhileness of the patient’s life. It holds that the life of certain patients falls below a quality threshold, whether because of disease, injury or disability.
This valuation of human life grounds the principle that, because certain lives are not worth living, it is right intentionally to terminate them, whether by act or omission. Some who subscribe to this philosophy would require the patient’s request as a precondition of termination. Others would not. After all, they argue, if the life of an incompetent patient is of such low quality that it is no longer worth living, and death would be a benefit, what is wrong with terminating it? 2. Quality v. quality: a crucial distinction (i) Worth of life v. atient’s condition “Quality of life” judgments purport to judge the worthwhileness of the patient’s life. The sanctity doctrine opposes such attempts and merely takes the patient’s condition into account in deciding on the worthwhileness of a proposed treatment. For, in order to decide whether a proposed treatment would be worthwhile, one must first ascertain the patient’s present condition and consider whether and to what extent it would be improved by *L. Q. R. 487 the proposed treatment. This exercise is often described as involving an assessment of the patient’s “quality of life” now and as it would be after the treatment.
At no point in the sanctity assessment is one purporting to pass judgment on the worthwhileness of the patient’s life, but the use of the term “quality of life” clearly risks confusion with its use in that sense. Such confusion is, regrettably, rife in ethical and legal discourse. To avoid any confusion in this paper, “ q uality of life” will hereinafter be used to refer to an assessment of the patient’s condition as a preliminary to assessing the worthwhileness of a proposed treatment and “Q uality of life” to refer to assessments of the worthwhileness of the patient’s life. ii) Illustrating the distinction To illustrate the differences between the two approaches, let us return to Angela. The sanctity approach concluded that the blockage should be removed because–on a fair measure, that is, one commonly used by people in relation to their own situation–the benefits promised by the treatment, the improvement the operation would make to her condition (or “quality of life”), would significantly outweigh any burdens. However, a Quality of life approach might well deny the operation on the ground that life with Down’s syndrome is simply not worth living.
The focus is not on the worthwhileness of the treatment: indeed, the problem is thought to arise by the Quality of life advocate precisely because the treatment would be entirely successful. (iii) Sanctity v. Quality From the standpoint of the sanctity doctrine, a central objection to the Quality of life philosophy is that it denies the ineliminable value of each patient and engages in discriminatory judgments, posited on fundamentally arbitrary criteria such as physical or mental disability, about whose lives are “worthwhile” and whose are not.
The arbitrariness is highlighted when it is asked which disabilities, and to which degree, are supposed to make life not worth living? 11 Such discrimination seems, moreover, inconsistent with national and international declarations of human rights, which recognise the inherent rights enjoyed by all human beings simply because of their common humanity, not because they pass some Quality threshold. 3. The law (i) Homicide The doctrine and principle of the sanctity of life have long informed English law. The law prohibits, as murder, the intentional shortening of a *L.
Q. R. 488 patient’s life, regardless of the motive of the doctor12 or the age, medical condition or wishes of the patient. Though the blameworthiness of the killer may of course be mitigated, it remains as much murder intentionally to shorten the life of an aged terminally-ill cancer patient who pleads for death as it is to kill a young person in the prime of life who strenuously objects to death. 13 It also remains murder regardless of “necessity”14 or duress. 15 Page5 (ii) Acts and omissions Nor is the criminal law concerned only to punish active killing.
Although there is, generally, no liability for an omission to preserve life, it is well-established that it is murder to omit to discharge a duty to preserve life if the omission is with intent to kill or cause serious harm. Examples would be a parent’s omission to feed his child, as in Gibbins and Proctor, 16 or a doctor’s to feed his patient, with such intent. (iii) Intention and foresight The important moral distinction between intention and foresight which characterises the sanctity principle has also, at least since the decision of the House of Lords in Moloney, 17 been more or less clearly incorporated into the law of homicide.
Murder requires proof of intention in its ordinary sense of purpose. Foresight, even of consequences which are certain, is not equivalent to intention and is, at most, evidence of intention. It will be recalled that the sanctity principle prohibits conduct intended to shorten life but that conduct which is foreseen to be certain or likely to shorten life may or may not be culpable, depending on the circumstances. *L. Q. R. 489 So too with the criminal law.
Intentional killing is punished as murder, but conduct which foreseeably shortens life is at most manslaughter and may be perfectly lawful, depending on the reasonableness of the doctor’s conduct. For example, a doctor who follows reasonable medical practice in administering palliative drugs to a dying patient, intending thereby to alleviate suffering, acts lawfully, even if the drugs, as an unintended sideeffect, hasten death. In Cox, a physician who had administered a lethal drug to a dying patient at her request was convicted of attempted murder.
In his summing-up, Ognall J. said: “It was plainly Dr Cox’s duty to do all that was medically possible to alleviate her pain and suffering, even if the course adopted carried with it an obvious risk that, as a side effect [note my emphasis, and I will repeat it: even if the course adopted carried with it an obvious risk that as a side effect] of that treatment, her death would be rendered likely or even certain”. There was no doubt, he added, that the use of palliative drugs would often be fully justified even if they hastened eath. What could never be lawful, however, was the use of drugs with the “primary purpose” of hastening death. 18 II. FROM SANCTITY TO QUALITY 1. The facts Before his death on March 3, 1993, Tony Bland had lain in Airedale Hospital for over three years in pvs, a state in which, it was believed, he could neither see, hear nor feel. The medical consensus was that he would never regain consciousness. Neither dead nor dying, his brain stem still functioned and he breathed and digested naturally.
He was fed by nasogastric tube, his excretionary functions regulated by catheter and enemas. Infections were treated with antibiotics. His doctor and parents wanted to stop the feeding and antibiotics on the ground that neither served any useful purpose. The hospital trust applied for a declaration that it would be lawful to do so. The application, supported by an amicus curiae instructed by the Attorney-General, was opposed by the Official Solicitor, representing Bland.
The declaration was granted by Sir Stephen Brown P. , whose decision was unanimously affirmed by the Court of Appeal and the House of Lords. *L. Q. R. 490 2. The ratio Counsel for the Official Solicitor, James Munby Q. C. , argued that stopping treatment and feeding would be murder or at least manslaughter. Three of the members of the House of Lords accepted his submission that the doctor’s intention would be to kill Tony Bland, a submission which the remaining two neither rejected nor accepted.
One of the three, Lord Browne-Wilkinson, said19 : “Murder consists of causing the death of another with intent to do so. 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 …, in my judgment there can be no real doubt that it is present in this case: the Page6 whole purpose of stopping artificial feeding is to bring about the death of Anthony Bland. ”20 Why, then, would it not be murder? Because stopping treatment and feeding was not a positive act but an omission.
Lord Goff stated21 that withdrawing life-support was no different from withholding it in the first place; the doctor was simply allowing the patient to die as a result of his pre-existing condition. Further, tube-feeding was medical treatment: there was, he said, “overwhelming evidence” that in the medical profession tube-feeding was so regarded and, even if it were not strictly treatment, it formed part of the patient’s medical care. The provision of food by tube was, he added, analogous to the provision of air by a ventilator.
The House further held that the doctor was under no duty to continue tube-feeding. Re F 22 decided that a doctor could treat an incompetent patient only if it was in the patient’s best interests; Bland held that the same criterion should govern the withdrawal of treatment. As continued feeding was no longer in the patient’ interests, the doctor was under no duty to continue it. The tubefeeding was not in Bland’s best interests because it was futile and it was futile because, in the words of Lord Goff,23 “the patient is unconscious and there is no prospect of any improvement in his condition”.
In deciding whether treatment was futile, the doctor had to act in accordance with a responsible body of medical opinion and thereby satisfy the “Bolam test”; the test which determines whether, in an action for medical negligence, a doctor has fallen below the standard of care required by the law. 24 *L. Q. R. 491 3. Misunderstanding the sanctity of life Their Lordships’ reasoning appears, with respect, vulnerable to several criticisms. (i) Tube-feeding: futile treatment or basic care? Why was tube-feeding not basic care which the hospital and its medical and nursing staff were under a duty to provide?
The Lords held that tubefeeding was part of a regime of “medical treatment and care”. 25 The insertion of a gastrostomy tube into the stomach requires a minor operation, which is clearly a medical procedure. But it is not at all clear that the insertion of a nasogastric tube is medical intervention. And, even if it were, the intervention had already been carried out in Tony Bland’s case. The question in such a case is why the pouring of food down the tube constitutes medical treatment. What is it supposed to be treating? Nor does the difficulty evaporate by classifying it, as did the Law Lords, as medical treatment or medical care.
As Professor Finnis observes26 : “The judgments all seem to embrace a fallacious inference, that if tube-feeding is part of medical ‘treatment or care’, tube-feeding is therefore not part of the non-medical (home or nursing) care which decent families and communities provide or arrange for their utterly dependent members. The non-sequitur is compounded by failure to note that although naso-gastric tube-feeding will not normally be established without a doctor’s decision, no distinctively medical skills are needed to insert a naso-gastric tube or to maintain the supply of nutrients through it. Their Lordships seemed to place great weight on the fact that tubefeeding is regarded by the medical profession as medical treatment. 27 But whether an intervention is medical is not a matter to be determined by medical opinion, nor by the mere fact that it is an intervention typically performed by doctors. A doctor may do many things in the course of his practice, such as reassuring patients or fitting catheters, which are not distinctively medical in nature. And, if it is opinion which is crucial, the answer one gets may well depend on whom one asks.
Tube-feeding may be regarded as medical treatment by many doctors, but many nurses regard it as ordinary care. 28 Further, Lord Goff’s analogy between tube-feeding and mechanical ventilation is (although accepted by Mr. Munby Q. C. 29 ) unpersuasive. Ventilation is standardly part of a therapeutic endeavour to stabilise, treat *L. Q. R. 492 and cure: tube-feeding is not. Moreover, ventilation replaces the patient’s capacity to breathe whereas a tube does not replace the capacity to digest and merely delivers food to the stomach. Nor have all patients who are tube-fed (including, it appears, those in pvs) lost the capacity to swallow.
Tube-feeding may be instituted solely to minimise the risk of the patient inhaling food and/or because spoon-feeding is thought to be too timeconsuming. Even if the patient has lost the capacity to swallow, the tube would still not be treating anything. A feeding-tube by which liquid is delivered to the patient’s stomach is surely no more medical treatment than a catheter by which it is drained from the patient’s bladder. Even if tube-feeding were medical treatment, why was it futile? Was it because it would do nothing to restore Tony Bland to the condition towards which medical practice and procedures are directed, namely ome level of health, an explanation consistent with the sanctity ethic? 30 Or was it rather Page7 because Bland’s life was thought futile, an explanation inconsistent with it? Dr Keith Andrews, director of medical services at the Royal Hospital for Neurodisability, and a leading authority on pvs, recently wrote31 : “It is ironic that the only reason that tube feeding has been identified as ‘treatment’ has been so that it can be withdrawn … I would argue that tube-feeding is extremely effective since it achieves all the things we intend it to.
What is really being argued is whether the patient’s life is futile–hence the need to find some way of ending that life. ” Are there, then, grounds for concluding that the judges in Bland condoned the withdrawal of tube-feeding because they felt the patient’s life, rather than the “treatment”, was futile? (ii) Misunderstanding the sanctity of life Lord Mustill rejected the notion that the state’s interest in preserving life was attenuated “where the ‘quality’ of the life is diminished by disease or incapacity”.
If correct, he added, that argument would justify active as well as passive euthanasia and thus require a change in the law of murder. 32 The proposition that because of incapacity or infirmity one life is intrinsically worth less than another was, he said, the first step on a “very dangerous road indeed” and one he was unwilling to take. 33 Yet even he held that Tony Bland had no interest in being kept alive34 and no best interests of any kind. 5 How do these propositions differ from a judgment that the patient’s life was no longer worthwhile? *L. Q. R. 493 The concept of the worthless life is even more pronounced in other judgments, particularly in those passages which espouse what one may call “dualism”, the notion that human beings comprise two separate entities: a “body” and a “person”, the former being of merely instrumental value as a vehicle for the latter.
Sir Stephen Brown P. , for example, described Tony Bland thus36 : “His spirit has left him and all that remains is the shell of his body … [which is] kept functioning as a biological unit …”. Similarly, Hoffmann L. J. said37 : “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”. Bland’s existence was, he added, a “humiliation”; he was “grotesquely alive”. 8 Such judicial endorsement of dualism is both novel and surprising, not only because (as Finnis points out39 ) dualism enjoys relatively little support among philosophers but also because the law has hitherto rejected the notion of “biological units” which are “inhabited” by a non-bodily person and has, on the contrary, taken the traditional, common-sense view that human life is personal life, that living human beings are persons and that persons are, applying standard biological criteria, either alive or dead.
As the judges recognised, it would be murder actively to kill Bland, regardless of his permanent unconsciousness. The law does not deny personhood, and the rights it attracts, because the person has lost the ability to think. We are all “biological units”, and our mental acts, far from being a separate form of life, something “added to” our body (from where? ), intrinsically involve, just like our physical acts, biological processes, and are an expression of our one life as a human being, a human person.
For example, the judge who listens to and evaluates an argument from counsel is not a biological machine with a little mental person inside (reminiscent of “The Numskulls” in the children’s comic) but an integrated, dynamic unity, a living human body ‘exercising the capacities (intellectual and physical) which are inherent in his or her nature as a human being. It is because we are human beings, human “biological units”, that we have the radical capacity for acts both physical and mental.
The fact that a human being has lost the ability to think does not mean he or she has lost his or her life. As Finnis puts it40 : “One’s living body is intrinsic, not merely instrumental, to one’s personal life. Each of us has a human life (not a vegetable life plus an animal life plus a personal life); when it is flourishing that life *L. Q. R. 494 includes all one’s vital functions including speech, deliberation and choice; when gravely impaired it lacks some of those functions without ceasing to be the life of the person so impaired. And, he adds, the fact that one is in pvs, although a gravely impairing condition which may prevent participation in basic human goods apart from life such as friendship or aesthetic experience, does not mean that one is not participating in the good, the benefit, of life. But could it be beneficial to feed and care for Bland even though he could not appreciate it? It is, however, perfectly possible to benefit someone, even if they are unaware of it, as where A, unbeknown to B, deposits a large amount in B’s bank account, or speaks well of him to C. 1 And to state, as did Lord Mustill,42 that Bland had “no best interests of any kind” is, with respect surely false. Would it not have been contrary to his interests to use him as, for example, a sideboard? Page8 Given the dualistic reasoning uncritically engaged in by the judges, their conclusion that Bland’s life was of no benefit, indeed may even have been a harm, a humiliation, comes as little surprise.
That it was Bland’s life, and not his tube-feeding, that was adjudged worthless is clearly illustrated by the following passage from the speech of Lord Keith of Kinkel: “… 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: Bolam v. Friern Hospital Management Committee  1 W. L. R. 582. 43 But why was discontinuance not a breach of the principle of the sanctity of life, a principle which Lord Keith accepted44 it was the concern of the State, and the judiciary as one of the arms of the State, to uphold? What is remarkable is that, while their Lordships agreed with the fundamental importance of the principle, none of them accurately articulated it. Lord Goff, for example, in setting out the fundamental principles of law relevant to the case, stated45 that the “fundamental principle is the principle *L. Q. R. 95 of the sanctity of life”. But he then went on to claim46 that, although it is fundamental, it is “not absolute”. In support of this surprising claim, he made a number of observations which suggest that his Lordship misunderstood the principle. He observed, first, that it is lawful to kill in self-defence and, secondly, that, in the medical context, there is no absolute rule that a patient’s life must be prolonged by treatment or care regardless of the circumstances, Both statements are, as the discussion in Part I made clear, accurate.
But they do not show that the principle of the sanctity of life is “not absolute”, unless one thinks, as his Lordship appears to, that the principle prohibits all killings or requires the preservation of life at all costs. Neither proposition is, of course, consistent with the principle as traditionally formulated and understood. His Lordship observed, thirdly, that the fact that a doctor must respect a patient’s refusal of life-prolonging treatment showed that the sanctity of life yielded to the right to self-determination.
Again, his Lordship seems to think that the sanctity of life requires the preservation of life, even against the competent patient’s contemporaneous wishes. Again, this is not so. Fourthly, he distinguished between a doctor, on the one hand, omitting to provide life-prolonging treatment or care and, on the other, administering a lethal drug. “So to act”, he said47 “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”.
But, as we saw in Part I, the intentional killing by one person of another person in his care, even if effected by omission, breaches the principle. (iii) The Bolam test The House of Lords decided that Bland’s doctor was under no duty to continue treatment and tube-feeding if he felt that continuation was no longer in the patient’s best interests and if his opinion was supported (as it was) by a responsible body of medical opinion. Indeed, as Lord Browne-Wilkinson pointed out,48 if the doctor decided that treatment was no longer in the patient’s best interests, he was under a duty to withdraw it.
Since the doctor could only lawfully treat the patient if he believed it was in the patient’s best interests, continuing treatment when he did not believe it to be so would constitute the crime and tort of battery. But why should the judgment about which patients have lives worth living be delegated to a “responsible body” of medical opinion? Even assuming this comprehensive judgment can be made about the worth of another (which the sanctity principle denies), what qualifies a doctor to *L. Q. R. 496 make it?
Lord Mustill aptly observed49 that the decision could be said to be ethical and that there was no logical reason why the opinions of doctors should be decisive. His was, however, a lone voice. Lord Browne-Wilkinson expressly stated50 that one doctor could decide, because of his ethical views about the sanctity of life, that his patient was “entitled to stay alive” whereas another doctor who saw “no merit in perpetuating a life of which the patient is unaware” could lawfully stop his patient’s treatment.
Their Lordships did observe that, for the present, all cases like Bland’s should be brought before the Page9 High Court for a declaration. But what is the court’s role? Is it, as it appears to be, essentially to confirm that the doctor’s opinion is supported by a responsible body of medical opinion? Or is it to lay down judicial criteria for deciding which lives are worthwhile? If the latter, what are those criteria? 51 (iv) A “slippery slope” Hoffmann L. J. aid52 that it was “absurd to conjure up the spectre of eugenics” as a reason against the decision in Bland. However, once Quality supplants inviolability, there is no reason in principle why the Quality threshold should stop at pvs. Finnis has observed that it is one thing to say that one should treat people in ways which affront their inalienable dignity, but quite another to say that, because of their physical or mental disability, they have no dignity or, worse, that they are an indignity. How can the latter judgment logically be limited to those in pvs?
As he maintains53 : “Epithets of indignity and humiliation could easily be applied (as in recent history) to various classes of severely handicapped people, many of whom, moreover, cannot exercise the distinctively human or ‘personal’ forms of understanding and response. ” Lord Mustill raised,54 without resolving, the case of the patient who has “glimmerings of awareness” and Lord Browne-Wilkinson55 the patient with slight chances of improvement or with “very slight sensate awareness”. In May 1995, the Irish
Supreme Court, following Bland, permitted (by a 4-1 majority) the withdrawal of tube-feeding from a patient who was not in pvs and had retained some cognitive function. 56 It affirmed the decision *L. Q. R. 497 of the first instance judge who stated that if she were aware of her condition “that would be a terrible torment to her and her situation would be worse than if she were fully P. V. S. ” 57 Leaving aside the reasoning of the judges who favoured withdrawal, (which is more, rather than less, vulnerable to criticism than the reasoning in Bland ) the Irish case illustrates the inherently arbitrary nature of Quality of life judgments.
The criticism bites even more deeply when the judgment is, via the Bolam test, delegated to “responsible” opinion. The question then simply becomes whether there is a body of “responsible” medical opinion which supports the doctor’s view that the patient’s life is worthless, whether or not a larger body of medical opinion disagrees. The inherent arbitrariness of Quality of life judgments, particularly when delegated to doctors, is underlined when it is recalled that medical opinion is often divided and in flux.
A patient may be treated by a doctor who thinks his life worthwhile, but that doctor’s ethical views may change, or the patient may come under the care of a doctor with different ethical views. The upshot would appear to be that if a doctor responsible, say, for a patient with advanced Alzheimer’s disease thinks the patient’s life is of no benefit, and the doctor’s opinion coincides with that of a “responsible body” of medical opinion, the doctor may, indeed must, cease treating the patient.
A recent case concerning non-treatment of an incompetent adult involved a 23 year-old-man (“R”) with serious mental and physical disabilities. 58 Frail and weighing five stones, R operated cognitively and neurologically at the level of a newborn infant but responded to comfort, warmth and a safe environment by producing the occasional smile and to pain and to discomfort by becoming distressed and crying.
After several hospital admissions in 1995, the consultant psychiatrist in learning disabilities who was responsible for his treatment agreed with R’s parents that should R suffer a life-threatening condition involving a cardiac arrest he should not be given cardio-pulmonary resuscitation. As a result of concern expressed at this decision by staff at the day care centre R attended, the hospital trust applied for a declaration in the Family Division and the Official Solicitor was appointed to act as R’s guardian ad litem. Sir Stephen Brown P. ranted a declaration in terms drafted by counsel for the Official Solicitor, James Munby Q. C. , and approved by counsel for the plaintiffs and by R’s parents. The declaration provided inter alia that it would be lawful as being in R’s best interests for the plaintiffs to perform a gastrostomy but to withhold cardio-pulmonary resuscitation and, provided R’s general practitioner and consultant psychiatrist so advised and *L. Q. R. 498 one or both of R’s parents agreed, to withhold antibiotics in the event of a potentially life-threatening infection. 9 Re R does little to assuage concern about a slippery slope. Although Dr. Keith Andrews, medical expert for the Official Solicitor, opposed resuscitation on the ground that it would be a futile treatment (because of its very small prospect of success and its real risk of inflicting injuries on R), Brown P. ‘s judgment omits to distinguish between non-treatment on this ground and on the ground that the Page10 patient’s life is thought futile and, in a number of passages, approves non-treatment on the latter ground. 0 The risk of a slippery slope is heightened by the practical difficulties which can be involved in accurately diagnosing the condition which is thought to justify non-treatment. Even pvs is not a clear-cut syndrome and misdiagnoses are not uncommon. A study carried out by Dr Keith Andrews, published in July 1996, disclosed that of 40 patients referred to the Royal Hospital for Neurodisability as vegetative between 1992 and 1995, no fewer than 17 (43 per cent) had been misdiagnosed.
All but one of the 17 had been referred by a hospital consultant, mostly by a neurologist, neurosurgeon or rehabilitation specialist. The study concluded that accurate diagnosis is possible but requires the skills of a multidisciplinary team experienced in the management of people with complex disabilities. 61 The Practice Note governing applications for declarations in cases of pvs states that there should be two neurological reports on the patient, one commissioned by the Official Solicitor, but does not require the involvement of a such a team. 2 Furthermore, the risks of misdiagnosis must increase if time is short. In one case in which the Court of Appeal declared that it would be lawful not to reinsert a feeding tube which had become disconnected, the court did so even though there had been insufficient time for the Official Solicitor to obtain an independent neurological opinion. It seems doubtful whether the patient in that case was in fact vegetative. 63 (v) A possible explanation? What accounts for the judges’ misunderstanding of the sanctity principle, a principle which has long been central to the law?
A plausible explanation *L. Q. R. 499 is that the principle does not appear to have been accurately set out before them by any of the counsel who appeared in the case. Even counsel for the Official Solicitor appears to have confused sanctity with vitalism. In the Court of Appeal, for example, he argued that if Tony Bland showed signs of life-threatening failure of, in succession, heart, lungs, liver, kidneys, spleen, bladder, and pancreas, the doctor would be under a duty to perform surgery to rectify the failure. Sir Thomas Bingham M. R. bserved64 : “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. ” This observation is, with respect, entirely right since counsel’s argument was surely vitalistic. Bland was not the first time Mr Munby Q. C. had, as counsel for the Official Solicitor, advanced a vitalistic understanding of the sanctity of life. In Re J (A Minor), 65 the previous leading case on the withholding or withdrawal of medical treatment, the question was whether a disabled ward should be artificially ventilated. Mr Munby Q. C. ade two alternative submissions. The first, his “absolute” submission, was “that a court is never justified in withholding consent to treatment which could enable a child to survive a life-threatening condition, whatever the pain or other side-effects inherent in the treatment, and whatever the quality of life which it would experience thereafter. ”66 The alternative, “qualified” submission67 (based on the reasoning of the Court of Appeal in the earlier case of Re B 68 ) was that a court could withhold consent to treatment only if it was certain that the Quality of the child’s life would be “intolerable” to the child.
In Re J, then, the court was presented with only two alternatives: vitalism or Quality of life. It preferred the latter, with the rider that the Quality of life was to be judged from the perspective of the child. As Taylor L. J. expressed it69 : “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.
I say ‘to that child’ because the test should not be whether the life would be tolerable to the decider. The test must *L. Q. R. 500 be whether the child in question, if capable of exercising sound judgment, would consider the life tolerable. ”70 It appears, then, that in Bland, as in Re J before it, the sanctity of life was not heard; that the choice as presented and perceived was between vitalism and Quality of life, and that the judges (unsurprisingly) opted for Quality of life.
Despite the fundamental importance attached to the sanctity of life by the judges who sat in Bland, it is by no means clear that any had the benefit of an accurate appreciation of it. III. FROM QUALITY TO SANCTITY Page11 What answer would the traditional ethic, accurately understood and applied, have yielded in the Bland case? Sanctity of life ethicists are agreed that since medical treatment, whether antibiotics or ventilation, can do nothing to restore those in pvs to a state of health and well-functioning, it is futile and need not be provided.
On the question whether tube-feeding is simply medical treatment or also basic care there is not, at least as yet, unanimity. Some classify tube-feeding as medical treatment which may, therefore, be withdrawn; others (probably advancing the more representative viewpoint) that it is basic care which ought, therefore, to be provided. 71 However, although the traditional ethic does not, as yet, unequivocally rule out the withdrawal of tube-feeding on the ground that it is futile medical treatment, it certainly rules out its withdrawal on the ground that the patient is futile.
While the ethic may currently allow for a legitimate diversity of answers, it does insist on asking the right question: “Is tubefeeding ‘treatment’ and, if so, is it worthwhile? ” and not “Is the patient’s life worthwhile? ” How, then, could their Lordships have developed the law in accordance with the sanctity of life principle? As Finnis has pointed out, cases such as Gibbins and Proctor establish that one who undertakes the care of a dependent person and omits to provide necessary food or clothing with the intention of causing death (or serious harm) commits murder if death results.
He adds that those cases do not confront the argument successfully raised in Bland –that one who has undertaken a duty of care may yet have no duty to exercise it so as to sustain life–but that *L. Q. R. 501 “the proper application or extension of their rule to meet that argument was surely this: those who have a duty to care for someone may never exercise it in a manner intended to bring about that person’s death. ”72 Bland decides the opposite. And it does so at the expense of radical inconsistency, prohibiting as murder intentional killing by an act, but permitting intentional killing by omission.
Imagine the following scenario. X is a patient in pvs who is free of any suffering and who has made no request to be killed. X’s doctor decides that, because X’s life is worthless, he would be better off dead, and stops his tube-feeding with intent to kill. In the next bed is Y, a patient dying in agony who, after serious reflection, begs the doctor to kill him by lethal injection. The doctor, fearful of prosecution, refuses. A third patient, A, moved by Y’s predicament, draws a pistol, holds it to the doctor’s head and threatens “If you don’t inject Y, I will shoot you dead”.
The doctor, to save his own life, administers a lethal drug to Y. The doctor’s killing of X is lawful; his killing of Y is murder. Small wonder that Lord Mustill expressed73 his “acute unease” about resting his decision on a distinction between acts and omissions given that “however much the terminologies may differ the ethical status of the two courses of action is for all relevant purposes indistinguishable”. But it is, with respect, the judges’ reasoning in Bland which has distorted the legal structure, not vice versa.
Bland is the culmination of a series of cases in which the courts have veered away from the traditional ethic, which coherently combines sanctity and quality in a consistent and principled legal opposition to intentional killing, toward a new ethic which incoherently combines sanctity and Quality and produces a misshapen opposition to active killing but not intentional killing by omission. The House of Lords urged Parliament to consider the issues raised by Bland. A distinguished Select Committee of the House of Lords, chaired by
Lord Walton and including Lord Mustill, was established by the House of Lords to consider the issues raised by the case. It reported in February 1994. The Committee recommended that the law should not be relaxed to permit active intentional killing. Reaffirming the prohibition on intentional killing, the Committee observed74 : “That prohibition is the cornerstone of law and of social relationships. It protects each one of us impartially, embodying the belief that all are equal. On the question of tube-feeding patients in pvs, the Committee was divided between those who regarded it as basic care which should be provided and those who regarded it as medical treatment which could *L. Q. R. 502 properly be withdrawn. Nevertheless, the Committee was unanimous that the question need not, indeed should not, usually arise since it was proper to withdraw medical treatment, including antibiotics, from such patients. 75 However, by confining itself to considering active killing and ignoring intentional killing by omission the Committee did little to resolve the inconsistency in the law created by Bland. 6 Consequently, the law remains in the same misshapen state in which the Law Lords left it. And the question which the Committee said should not arise has continued to do so as hospitals and courts hasten to terminate the lives of those they consider to be in pvs. 77 Lord Lowry referred78 in Bland to a gap between “old Page12 law” and “new medicine” and observed that it was the role of the legislature to remedy any disparity between society’s notions of what the law is and what is right.
But if their Lordships were looking to the legislature to render the law consistent by decriminalising active intentional killing, the legislature has declined the invitation and has bounced the misshapen ball back into the judicial forum. CONCLUSIONS First, the ethical principle of the sanctity of life, which has long informed English law, offers a middle way between the extremes of vitalism on the one hand and Quality of life on the other. Bland represented a swerve toward the Quality of life extreme, accepting that certain lives are of no benefit and ay lawfully be intentionally terminated by omission. Secondly, Bland has indeed left the law in a “morally and intellectually misshapen” state, prohibiting active, intentional killing but permitting (if not requiring) intentional killing by omission, even by those under a duty to care for the patient. The significance of the decision is profound: although the House of Lords Select Committee reaffirmed that active killing, even on request, should not be made lawful, the House of Lords have decided that killing by omission, even without request, already is.
The making of such a fundamental change in the law seems, moreover, difficult to reconcile with the guidelines for judicial development of the law laid down by Lord Lowry in C. v. D. P. P. 79 Thirdly, to the extent that the Law Lords have embraced the Quality of life principle, and effectively delegated the judgment which lives are of no *L. Q. R. 503 benefit to medical opinion, there is little reason to expect that judgment to be confined to patients in pvs. Fourthly, the Law Lords’ rejection of the sanctity principle appears to have been based on a misunderstanding of that principle.
Lord Mustill, surely rightly, observed80 that it was a great pity that the Attorney-General had not appeared to represent the interests of the state in maintaining citizens’ lives. It is to be hoped that the Attorney will appear in an appropriate future case to represent, articulate and defend the traditional ethic. Fifthly, the decision whether to withdraw treatment and tube-feeding from a patient in pvs should be based on an evaluation of the worthwhileness of the treatment, not the supposed worthwhileness of the patient.
While there appears to be a consensus that it is proper to withdraw treatment in such a case, there is a good argument that tube-feeding constitutes basic care and that it should, at least presumptively, be provided. Even if it were the better view that it may be withdrawn, this should be because it, and not the patient, is judged futile. Bland rendered the law morally and intellectually misshapen. It is to be hoped that the courts or the legislature will soon restore it to its former, coherent, shape, when it could be commended as Hippocratic rather than criticised as hypocritical.
JOHN KEOWN. 81 L. Q. R. 1997, 113(Jul), 482-503 1. Peter Singer, Rethinking Life and Death (1995) at p. 1. I shall use the term “sanctity” throughout because the “sanctity of life” has consistently been stated by the courts to be a governing principle of English law: see, e. g. , text to nn. 44-45, infra. However, the term runs the risk of seeming specifically religious and anyone who finds this possible connotation distracting could use the phrase “inviolability of human life”. Again following judicial usage, I shall use “life” throughout as shorthand for “human life”.
This is not the place to canvass the important reasons for distinguishing human from other animal life. 2. J. M. Finnis, “Bland : Crossing the Rubicon? ” (1993) 109 L. Q. R. 329. An overview of Bland and more recent cases on pvs is provided by J. K. Mason and G. T. Laurie, “The Management of the Persistent Vegetative State in the British Isles” (1996) 4 Jur. Rev. 263. 3. Respect for life is, however, also deeply rooted in eastern thought: see Damien Keown, Buddhism and Bioethics (1995). 4. Innocent” excludes anyone actively contributing to unjust aggression and the principle has, therefore, traditionally allowed the use of lethal force in self defence, the prosecution of a just war and the execution of capital offenders. This has little relevance to doctors and patients. 5. See Luke Gormally, ed. , Euthanasia, Clinical Practice and the Law (1994) at pp. 118-119. Page13 6. “To please no-one will I prescribe a deadly drug, nor give advice which may cause his death. Nor will I give a woman a pessary to procure abortion”: J. K. Mason and R. A. McCall Smith, Law and Medical Ethics (4th ed. 1994) at p. 429. 7. “I will maintain the utmost respect for human life from the time of conception; even under threat, I will not use my medical knowledge contrary to the laws of humanity”: ibid. at p. 430. 8.  A. C. 789 at pp. 863-864. 9. Emphasis added. 10. The precise ethical criteria have traditionally been articulated in terms of the long-established principle of “double effect”. This principle, recently endorsed by the House of Lords Select Committee on Medical Ethics (Report of the Select Committee on Medical Ethics H. L. Paper 21-I of 1993-1994, at para. 242. holds that an act which produces a bad effect is morally permissible if the action is good in itself, the intention is solely to produce the good effect, the good effect is not achieved through the bad effect, and there is a sufficient reason to permit the bad effect: see Luke Gormally, Prolongation of Life: the Principle of Respect for Human Life (Linacre Centre Papers, Paper 1) (1978) at p. 10. For a fuller discussion of the moral distinction between intended and foreseen consequences see J. M. Finnis, “Intention and Side-Effects” in R. G. Frey and Christopher W. Morris, Liability and Responsibility (1991) at p. 2; and “Intention in Tort Law” in David Owen (ed. ), Philosophical Foundations of Tort Law (1995) 229 at pp. 243-246. 11. See Gormally, op. cit. supra, n. 5 at pp. 123-124. 12. As Lord Goff has pointed out: “… if I kill you from the motive of compassion (so-called mercy killing) I nevertheless intend to kill you and the crime is one of murder”: “The Mental Element in the Crime of Murder” (1988) 104 L. Q. R. 30 at p. 42. 13. At York Assizes in 1812, two women who drowned a dying and deformed newborn child were convicted of murder, even though they thought they were acting rightly and lawfully.
The trial judge stated: “I think this prosecution may be of great use to the public, in removing an erroneous opinion, that the law allows the right of deliberately taking away the life of a human being under any circumstances whatever”: Woodger and Lyall (1812) 54 Annual Register, Chronicle at p. 97. 14. In Dudley and Stephens (1884) 14 Q. B. D. 273 Lord Coleridge C. J. , rejecting necessity as a defence to murder, observed (at p. 287): “It is not needful to point out the awful danger of admitting the principle which has been contended for. Who is to be the judge of this sort of necessity?
By what measure is the comparative value of lives to be measured? Is it to be strength, or intellect, or what? ” 15. In Howe  A. C. 417 Lord Mackay of Clashfern L. C. stated (at p. 456): “It seems to me plain that the reason that it was for so long stated by writers of authority that the defence of duress was not available in a charge of murder was because of the supreme importance that the law afforded to the protection of human life and that it seemed repugnant that the law should recognise in any individual in any circumstances, howeve extreme, the right to choose that one innocent person should be killed rather than another. He concluded that the law should continue to deny that right. See also McKay v. Essex A. H. A.  Q. B. 1166. 16. (1918) 13 Cr. App. R. 134. In this paper, “his” includes “her” unless the contrary is apparent. 17.  A. C. 905. See also Hancock and Shankland  A. C. 455; Nedrick  1 W. L. R. 1025; Walker and Hayles (1990) 90 Cr. App. R. 226; Fallon  Crim. L. R. 509; Scalley,  Crim. L. R. 504. 18. (1992) 12 B. M. L. R. 38 at p. 41. (The bracketed words appear in the extract from the summing-up in Ian Kennedy and Andrew Grubb, Medical Law: Text with Materials (2nd ed. , 1994) at p. 309. ) See also Adams  Crim. L. R. 365; Re J (A Minor)(Wardship: Medical Treatment)  1 F. L. R. 366 at pp. 374-375 per Lord Donaldson of Lymington M. R. 19.  A. C. 789 at p. 881. 20. Why the majority assumed it was the doctor’s intention to kill is unclear: it does not follow that because the doctor foresaw the patient’s death as certain he therefore intended it. 21.  A. C. 789 at 868. 22.  2 A. C. 1. 23.  A. C. 789 at 869. 24. Bolam v. Friern H. M. C.  1 W. L. R. 582. Lord Mustill reserved judgment about the appropriateness of this test in this context: see text to n. 9, infra. 25. Page14 See, e. g.  A. C. 789 at p. 858 per Lord Keith of Kinkel. 26. Op. cit. supra, n. 2 at p. 335. Original emphasis. 27. See, e. g.  A. C. 789 at p. 870 per Lord Goff. 28. See, e. g. Nursing Times, February 10, 1993 at p. 7. 29.  A. C. 789 at p. 822. 30. See Luke Gormally, “Reflections on Horan and Boyle” in Luke Gormally ed. , The Dependent Elderly (1992) at p. 47. 31. (1995) 311 B. M. J. 1437 (letters). 32.  A. C. 789 at p. 894. 33. ibid. 34. ibid. at p. 898. 35. ibid. at p. 897. 36. ibid. at p. 804. 37. ibid. at p. 825.
He admitted he had been influenced by reading the manuscript of Professor Dworkin’s book Life’s Dominion, a book which espouses dualism and misrepresents the doctrine and the principle of the sanctity of life (see (1994) 110 L. Q. R. 671). 38. See also  A. C. 789 at p. 863 per Lord Goff; at p. 879 per Lord Browne-Wilkinson; at p. 897 per Lord Mustill. 39. Op. cit. supra, n. 2 at p. 334. 40. Op. cit. supra, n. 2 at p. 334. 41. See Joseph Boyle, “A Case for Sometimes Tube-Feeding Patients in Persistent Vegetative State” in John Keown, Euthanasia Examined (1995), Chap. 13. 42.  A. C. 89 at p. 897. 43. ibid. at pp. 858-859 (emphasis added). See also p. 857, where he implies that Bland’s life was meaningless. See also pp. 878-879 and pp. 884-885 per Lord Browne-Wilkinson. 44. ibid. at p. 859. 45. ibid. at p. 863. 46. ibid. at p. 864. 47. ibid. at p. 865. 48.  A. C. 789 at p. 883. 49. ibid. at pp. 898-899. 50. ibid. at p. 884. Page15 51. See Frenchay N. H. S. Healthcare Trust v. S  1 W. L. R. 601; John Keown, “Applying Bland ”,  C. L. J. 456. 52.  A. C. 789 at p. 831. 53. Op. cit. supra, n. 2 at p. 336. 54.  A. C. 789 at p. 899. 55. ibid. at p. 885. 6. In the Matter of a Ward of Court  2 I. L. R. M. 410; John Keown, “Life and Death in Dublin”  C. L. J. 6. 57. Cited in  2 I. L. R. M. 401 at p. 432 per O’Flaherty J. , emphasis added. 58. Re R (Adult: Medical Treatment)  2 F. L. R. 99. 59. ibid. at p. 110. 60. See ibid. at p. 107 where he applied Re J (A Minor)  1 F. L. R. 366 in which the Court of Appeal adopted a Quality of life approach (see text infra nn. 65-70). His reliance on Re J rather than Bland is puzzling as Re J involved a minor. Both cases, however, are at one in adopting a Quality of life approach.
Another puzzling aspect of Re R is the doctors’ willingness to perform a gastrostomy operation but not to administer antibiotics. No less odd is the requirement of parental consent. 61. Keith Andrews et al. , “Misdiagnosis of the Vegetative State: Retrospective Study in a Rehabilitation Unit” (1996) 313 B. M. J. 13. 62.  2 F. L. R. 375. 63. Supra, n. 51. Another interesting case is Re D, The Times, March 22, 1997. 64. ibid. , at p. 815. See also Butler-Sloss L. J. at pp. 822-823. 65. Re J (A Minor)(Wardship: Medical Treatment)  1 F. L. R. 366. 66. ibid. at pp. 370-371. 67. ibid. at p. 373. 68.  1 W. L. R. 421. 69.  1 F. L. R. 366 at pp. 383-384. 70. Given that the child had never been capable of making any judgment, invoking the child’s viewpoint is, with respect, a confused fiction. It is remarkab