Airedale NHS Trust v Bland

Life-sustaining treatment of an adult who lacks capacity and has made no effective advance refusal is lawful only while it serves the patient’s best interests. The strong presumption in favour of preserving life is rebuttable. Where an adult has remained wholly insensate in an irreversible persistent vegetative state, has no prospect of recovery and gains no therapeutic or other benefit from treatment, doctors may lawfully withdraw artificial nutrition, hydration and antibiotics. Artificial feeding forms part of medical treatment or care, although its precise label is not decisive. Lawful withdrawal is an omission to continue futile care, not the introduction of an external cause of death, and therefore does not constitute homicide. For the time being, a declaration should be sought from the High Court before treatment is withdrawn in comparable cases.

Airedale NHS Trust v Bland [1993] 2 WLR 316 concerned an adult who had suffered catastrophic hypoxic brain damage in the Hillsborough disaster. He had remained in a persistent vegetative state for more than three years. He had no awareness or capacity to suffer, and the unanimous medical prognosis excluded any prospect of recovery.

He was kept alive through artificial nutrition and hydration administered by a nasogastric tube, together with skilled nursing, medication and treatment of recurrent infections. He had made no advance statement about treatment, but his family and doctors supported its withdrawal. On 19 November 1992 Sir Stephen Brown P., sitting in the Family Division, declared that life-sustaining treatment and medical support could lawfully be discontinued.

The Official Solicitor appealed on the patient’s behalf. The central question was whether artificial feeding and antibiotics could lawfully be withheld from an insensate adult with no hope of recovery, although death would inevitably follow.

Appeal dismissed unanimously. Sir Thomas Bingham M.R., Butler-Sloss L.J. and Hoffmann L.J. delivered separate judgments reaching the same conclusion. The Master of the Rolls expressly agreed with the reasons of both Lord Justices.

1. Consent and incapacity. A competent adult may refuse medical treatment, even irrationally and even where death will result. A sufficiently clear advance refusal continues to govern after incapacity. Where an adult lacks capacity and has made no applicable refusal, neither relatives nor the court can consent on the patient’s behalf. Treatment is governed by the patient’s objectively assessed best interests, consistently with In re F. (Mental Patient: Sterilisation) [1990] 2 AC 1.
2. Sanctity of life and best interests. The law accords profound respect to human life, but the presumption favouring its preservation is not irrebuttable. The reasoning and binding ratio of In re J. (A Minor) (Wardship: Medical Treatment) [1991] Fam 33 established that best interests may justify withholding life-saving treatment. Butler-Sloss L.J. held that the assessment was not confined to pain and suffering. It could include the invasiveness and indignity of treatment and the reality of the patient’s existence. Hoffmann L.J. likewise treated dignity and respect for the individual as material, while distinguishing this extreme condition from conscious disability.
3. Artificial feeding. Nasogastric nutrition and hydration formed part of medical treatment or, at least, medical care. Its insertion, maintenance and associated nursing required professional skill. All three judges considered that the legal result did not turn on terminology.
4. No continuing duty. Once doctors were medically certain that the patient had permanently lost consciousness, could never recover and obtained no benefit from life-prolonging care, their duty did not require indefinite continuation. Withholding treatment and withdrawing treatment already begun were equivalent for this purpose. The family’s wishes were important but not determinative.
5. Criminal law. Discontinuance would not constitute murder or manslaughter because there was no duty to continue futile treatment and therefore no unlawful act or omission. It would allow the patient’s pre-existing condition to operate. It was fundamentally different from administering a lethal drug or introducing another external agency of death, which remained unlawful.
6. Procedure. The court reviews lawfulness and guards against error, conflict and improper motives; professional opinion alone does not determine the legal question. For the time being, comparable cases should be brought before the Family Division for declaratory relief. The appeal was dismissed, with no order as to costs and with leave to appeal.

1. House of Lords: On 4 February 1993 the House unanimously dismissed the Official Solicitor’s further appeal in Airedale NHS Trust v Bland [1993] UKHL 17.
2. Court of Appeal: In this judgment, delivered on 9 December 1992, the court unanimously dismissed the appeal, made no order as to costs and granted leave to appeal.
3. High Court, Family Division: On 19 November 1992 Sir Stephen Brown P. declared that the Trust and attending doctors could lawfully discontinue artificial nutrition, hydration and other life-sustaining treatment. The Court of Appeal affirmed those declarations.