In the UK every year an average of 1500 patients are diagnosed as being in a state of PVS29 with perhaps the most famous victim in recent years being Tony Bland. A casualty of the Hillsborough football stadium disaster the teenager was left with a fully functioning brain stem but a fatally damaged ‘watery mass”30 of a higher cortical brain. Legally an adult and lacking the guardianship principle applied to Quinlan, Bland was not in a position to personally instruct the removal of his feeding tube.
Three years after the accident, the courts decided that by applying the best interest tests outlined in a previous case,31 where the incompetent patient was incapable of reaching a decision, that this action would not constitute murder of the capable of being murdered Tony (the majority of their Lordships accepted the premise that the doctors ultimate intention was to kill Tony Bland)32. Rather the removal of the feeding tube was to be viewed as being a medical omission to provide treatment as opposed to a specific commission or provision of medical care, not only legally lawful but in addition a legally required act.
The defining of this positive act as an “omission” is of crucial importance and it can be argued is one of the most common methods of cloaking the pursuance of active euthanasia by medics as being a legally justified and even humanitarian act. Euthanasia is the ending of a life by another in response to a normally terminal illness, intended to relieve the victim of the distress of bearing the suffering and anguish associated with the process of dying, often cited as facilitating a dignified death it can be either voluntary or involuntary but in either sense is illegal.
The intentional act intended to cause death, where the causing of death is the primary motive for the actor constitutes active euthanasia. Passive euthanasia would concern an omission, a failure to treat, where the negative act of refraining causes death. The underlying strength of both acting and not acting can be said to be of equal potency as both result in the death of a human being, and therefore no moral distinction can be drawn between the two ethical positions with regards to the medic.
Some omissions create just as strong a possibility of death as their corresponding acts”. 33However the medic is strongly affected by the legal position regarding the technical and fundamental differences between an act and an omission on criminal law, with the actor engaging in active euthanasia being immediately liable to prosecution under the criminal law, whilst the actor who facilitates a death in similar circumstances by failing to act, by an omission will not face the same consequences.
Equating the continuance of treatment by a doctor that he or she perceived to be against a patients best interest as being tantamount to the crime of battery, and therefore it would be the practitioner’s duty to avoid committing this crime in this instance by stopping ng nutrition. 35 The uneasy inference from this is the judiciary’s easy acceptance of which actions are in the patient’s best interest with what the doctors perceive to the patients best interest36, harping back to the days of “Bolam”37. What emerged from Bland was the undoubted legal attribution of life to the patient in PVS.
There is no doubt that the PVS patient remains alive and accordingly is capable of being wrongfully killed and capable of being murdered; therefore Tony was not treated “as if he were dead” The views expressed in Bland have been shown to be inconsistent with the manner in which the courts have subsequently approached similar situations. As is illustrated below the particular principles developed in Bland defining the future approach to patients suffering from PVS have been consistently eroded appearing to justify.
Singer praising their Lordships for exposing the honesty and true nature of the doctors request i. e. a request to kill Tony Bland via ng nutrition withdrawal, by the majority recognising the sanctity of life, that they discarded “the fig leaf that might have hidden the true nature of their decision: that it can be lawfully intentional to bring about the death of an innocent human being”38 the fact that the court recognised and distinguished this intention to kill differentiates their viewing of the PVS as an individual alive and legally protected by the same laws and rights as you or I and a patient who “is already dead”
After Tony Whilst it is fundamentally untrue to suggest that the courts are currently treating PVS patients as though dead, it is true that the proud standards set by Lord Goff as additional safeguards in Bland39 have been continually and consistently eroded by the UK courts in recent years allowing as they have, barely a year later, the accidentally disconnected feeding tube to remain disconnected without seeking reassurances that the unfortunate patient, a previously very healthy 22 year old male was even in a genuine PVS state.
40 Instead they followed the most negative ruling in Bland Lord Browne Wilkinson’s musings that such a positive act as inserting (or reinserting a feeding tube) might be construed as assault, the patient died. Eroding the ethos of Bland even further in a number of UK cases the patients involved in these rulings were clearly not inhabiting the PVS state, in some instances they were experiencing some transient episodes of awareness to such an extent that even the medics could not honestly testify as to the permanency of their conditions.
However the courts accepted the prevailing medical opinion that “meaningful life” was absent and subsequently allowed the discontinuation of ng feeding. 41This worryingly extended what to all intents and purposes is legally sanctioned active euthanasia to citizens thought to be almost in a PVS state. These rulings clearly defied the Bland ruling that the patients should be known to have inhabited a PVS state for at least twelve months, perversely in one rare instance when the patient was though to be medically undeniably inhabiting this condition permission was sough to discontinue nutrition after only nine months.
42 Further safeguards requiring the medical confirmation of the PVS state by at least two other independent experts have also been disregarded when Butler Sloss P relied on only one expert testimony to prove evidence of same43 with the “great weight” which should have been automatically attributable to the patients family similarly being overridden, when despite a mothers please, the discontinuance of another PVS patients life sustaining treatment was upheld44. Denied of their basic Human Rights PVS patients remain unaffected by the ECHR.
Conclusion
As has been demonstrated there are a number of conditions which are specific to the patient inhabiting the PVS state that clearly differentiate them from the medical dead patient regardless of whether medical death is viewed as being a process or a spcific event, a gradual cellular and molecular decay spreading with varying rapitidy through every element of the body or an abrupt cessation of the respiratory sytem and cardiac arrest, the conditions are fundamentally different.
The primary differnces include the difficulty in accuratly diagnosing PVS, the inconcistency of the various tests with no international agreement on the medical criteria required. The fully functioning brain stem possesed by the patinet in PVS defines us all as being medically and legaly alive.
The lack of research into possible treatments and therpaies and the uncertainty surrounding the atients recovery, its permanence and extent, with full ad partial recoveries already having been deocumented. The lack of information regarding PVS patients and possible treatments and therapies is frustrated by both the relatively low number of patients in any one place at any one time and the lack of medical funding in this area.
With an estimated care cost of approx $7 billion per annum46 in the USA, the PVS condition is a costly one and arguable a cost which society, NHS Trusts and Health Insurance providers would rather not bear. Pro active euthanasia has moved from being an ethical, moral and religious consideration to becoming a straight forward cost benefit and tellingly has been explored by science and the judiciary in much greater detail than any of the possible PVS therapies and treatments.
Despite promising devlopments in the areas of gene therapy and fetal brain tissue grafts the continued medical and legal controversy over the continued care of these patients has distracted medicine from developing treatments necessary to progress PVS recovery from the chance, natural and spontaneous event that it is today, to the medically based drug and science based recovery of tomorrow.
The technicalities of rendering acts as omissions in order to preserve reputations and avoid prosecution clearly signpost the courts difficulties in sanctioning the effective killing of these patients, recognizing as they do the undisputable essence of their “aliveness’. If already medically dead this problem would be rendered irrelevant. These patients are alive with perhaps only paused consciousness, functioning brain stems and respiratory systems their biorhythms separating night from day.
Disturbing as the trend towards expanding the criteria and principles clearly state in “Bland” this situation is not yet out with judicial control, but the continued and expanded deference to medical opinion will surely escalate the number of patients denied basic nutrition on account of their consultant determined worthless existences with treatment being futile.
Aside from the obvious subjective nature of the determination of another lifes value, to determine that a life, any life is worthless demands that a comparison is made between the life lived by that person and the death to be experienced by that same person, only then can it be decided that it would be beneficial for the person to die. The problem is that “death is not an event in life: we do not live to experience death”.
PVS patients are alive, and the arrogance of medics in determining that their life is worthless requires that the doctors view the patients existence from his point of view, which is impossible. 48 Regardless if inhabiting the PVS state or not, the weak, vulnerable and under represented of all ages will be exposed to doctor determined evaluations of their value to society versus their bed blocking, budget wrecking cost to the Trust, ultimately if they live or die, aided by the courts salving their consciences with rulings of omissions and best interests.Yes I agree the best interest test is being applied, but to whom does the interest belong?
BIBLIOGRAPHY
Books, Texts, Cases and Academic Research Papers Sourced and Studied. Dworkin, Life’s Dominion. London, HarperCollins, 1993. Glover. Causing Death and Saving Lives. London, Penguin, 1977. Matsuda,. Sugimoto, . Sato, Watanabe, Yanaka, Matsumura. Nose. 1999. A Case of Primary Brain-stem Injury Recovery From Persistent Vegetative State After L-dopa Administration. No To Shinkei. 51(12): 1071-4.