Over the past year many questions have been raised about the difficulties of legislating for cases involving children or adults with serious illnesses or in a persistent vegetative state (PVS).
Perhaps the most extreme case to hit the headlines recently was that of Jim and Bronwen Stewart who wanted to let their two-year-old son Ian die by lethal injection. The case was featured on BBC's Inside Story, 11 January 1996.
Ian was born with only one artery leading from his heart. A subsequent operation at Bristol Royal Infirmary to insert an artificial artery left him deaf and severely brain damaged. The Stewarts said he faced a life of uncomprehending agony. They were kept awake most nights by his screams and he also screamed throughout the day. He will eventually die because of his heart condition.
But the Stewarts were universally opposed by doctors, lawyers and even by voluntary euthanasia campaigners in their attempt to gain permission to administer euthanasia.
The British Medical Association, which voted against euthanasia last summer, said: “You cannot deliberately take someone's life. It must remain against the law.”
Frank Field MP, founder of the parliamentary Dying Well Group, said: “This is a sad case. It is incomparable to the plight of the family of Tony Bland, who was in a coma for months after the Hillsborough football disaster. It was awful that loving parents were forced to go to the House of Lords to make it lawful for medical staff to stop feeding their son.” Field recommended hospice treatment for children like Ian.
Many people differentiate between lethal injection and withdrawal of artificial feeding. Bland's father said: “To me, euthanasia is direct injection and killing with a needle. When Tony's tube was removed, it was dignified and peaceful.”
The controversial question of withdrawing artificial feeding has been raised again by the case of Thomas Creedon. He cannot see, hear, suck or swallow. He has no control over his limbs or head, suffers fits and is in constant pain. His parents cannot cuddle him properly because he goes into muscle spasm when touched.
When Thomas was a week old, doctors began drip-feeding him through his nose, although his parents begged them not to. Thomas has had operations to tighten his stomach muscles so he will be sick less often and to put a hole in his stomach for feeding. However, his parents want doctors to stop artificial feeding. They said: “We are victims of a grey area in the law which fails to recognise artificial feeding is as much a life-support system as a ventilator. In our case it is prolonging a very meaningless life which is filled with pain and suffering.”
In Airedale NHS Trust v Bland (1993), the decision of whether removal of life-sustaining treatment was or was not in the patient's best interests was held to be a matter to be decided primarily by the patient's doctor, acting in accordance with a practice accepted as proper by a responsible body of medical opinion.
No English court has yet suggested what factors may be relevant in determining what constitutes a patient's best interests. It is not yet know whether the Bland test may be applied to non-PVS cases. It also not known whether the courts will continue to make a distinction between withdrawal of life-sustaining treatment (lawful) and actively ending the life of a patient, for example, by administering drugs (unlawful).
The Bland test was most recently applied by Mr Justice Johnson in the case of 'C' (unreported, The Times, 18 November 1995), a 27-year-old PVS patient who had suffered brain damage under general anaesthetic while having his wisdom teeth taken out.
C could not move his limbs, although his body jerked in response to noise. He was mute and apparently blind and did not recognise family or friends. He could cough, choke, vomit, sneeze violently, and his face sometimes showed distress.
Doctors agreed there was no prospect of any improvement and that, if the “exemplary” medical care was maintained, he might live another 30 years. C's parents concluded in 1994, three years after his injury, that treatment should be withdrawn and were supported in that conclusion by the hospital, the doctors, and the Official Solicitor.
Mr Justice Johnson said he was sure C had no awareness and his interests required the court to order the withdrawal of the artificial administration of nutrient, water and medical treatment. He said this “would allow his life to end peacefully with dignity and with the least harm, suffering and distress”.
As the law stands at present, this decision may only be made by a High Court judge.
The decision will always be extremely difficult. Recent reports (The Times, page 8, 4 January 1996) of a young woman in the US recovering from a PVS are unlikely to speed Parliament into codifying the reasoning behind the Bland case.
It is likely that parents, lawyers and doctors will have to continue relying on judge-made law as applied to the particular facts of each case. The uncertainty created by Parliament's failure to address these difficult issues is far from satisfactory.
As Lord Browne-Wilkinson said in the Bland case: “It seems to me imperative that the moral, social and legal issues raised should be considered by Parliament. The judges' function in this area of law should be to apply the principles which society, through the democratic process, adopts, not to impose their standards on society.”