England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		25th October 2000

DAME ELIZABETH BUTLER-SLOSS :

1. I should first like to express my gratitude to counsel for their most helpful skeleton arguments and oral submissions which I have found to be of the greatest help in writing this judgment.
2. On the 5th and 6th October I heard applications by two hospital trusts (Trust A and Trust B) seeking similar declarations to enable hospitals managed by them to discontinue artificial nutrition and hydration provided to two patients, Mrs M and Mrs H. The applications were supported by the families of each patient and by the hospital staff. The Official Solicitor represented both patients in accordance with the Practice Note [1996] 2 FLR 375; 4 All E R 766. The Official Solicitor did not oppose the applications. Mr Wood, representing an unincorporated organisation called ALERT, sought to intervene to put forward grounds upon which it was asserted that I should refuse to grant the declarations. For reasons which I gave at the time I refused to allow ALERT to intervene. Since a decision in respect of Mrs H was urgent, I gave my decisions on the 6th October; granted both declarations in the terms sought and reserved my reasons.

A The Facts

Mrs M's Case

3. Mrs M is 49 and married with three adult children. She and her husband went to live in a foreign country in 1984 where he had obtained employment. On the 10th September 1997 Mrs M was admitted to hospital for gynaecological surgery. The facts are not entirely clear since the medical notes of that hospital are not available but it appears that she had a cardio-respiratory arrest while under general anaesthesia and suffered hypoxic brain injury. She was diagnosed as being in a chronic vegetative state by a consultant physician in the foreign country. She remained in hospital until January 1998. After a brief period at home she went into a nursing home. Her husband decided to return to England and he and his son managed to bring Mrs M back by air on a regular flight in October 1998. She was admitted to hospital in the area where they had previously lived and has remained there ever since under the care of Dr L. I have been provided with written evidence from her husband and a nursing representative from the hospital. The specialist medical evidence was given by

i.Dr L who is a consultant physician and retains the overall care of Mrs M, made the diagnosis of a vegetative state in October 1998.

ii.Dr S, who carries out regular clinical sessions for Trust A, examined Mrs M in October 1998. He examined her again on the 5th October 1999 and found she was in a permanent vegetative state.

iii.Professor Jennett who is Professor Emeritus of neurosurgery at the University of Glasgow was asked by the Trust to examine Mrs M and did so on the 5th May 1999.

iv.Professor Wade who is a consultant in neurological disability, was asked by the Official Solicitor to examine her and did so on the 26th August 2000. He agreed that Mrs M was in a permanent vegetative state.

4. Professor Jennett gave oral evidence. He was satisfied that Mrs M was in a permanent vegetative state. She had suffered anoxic brain damage. She was being fed through a PEG tube. The prospects of any change were "vanishingly small" and she could live for many years. He agreed with the conclusions of the Royal College of Physicians in 1996 that in PVS cases that were not caused by head injury it was appropriate to wait six months after the diagnosis of permanent vegetative state. In the present case, Mrs M has probably been in a vegetative state since immediately after the event in September 1997. She has therefore been in this state for over three years. He confirmed that if artificial nutrition and hydration were withdrawn she would not suffer any pain in the brief period before she died.

Mrs H's Case

5. She is 36. She was previously married and has one son now aged ten. She and lived with her son. From her teens she suffered from severe episodes of epilepsy and has for many years been under the care of Dr C at the hospital run by Trust B. Despite her serious medical problems she had a lively and bubbly personality. Her medication had side effects and caused her episodes of pancreatitis. At Christmas 1998 she became engaged to be married and went on holiday with her future husband to the United States in 1999. While she was there she developed pancreatitis. After her return to England she had another attack of pancreatitis in October 1999 and was admitted to hospital. She was discharged but on the 16th January 2000 she was readmitted and on the 18th January she was found collapsed in an asystolic cardiac arrest. She suffered anoxic brain damage. She was moved to her present hospital and has continued under the care of Dr C.
6. I have been provided with written evidence from Mrs H`s mother, her fiancé, two close friends of the family, her general practitioner, one of the nursing staff on her ward and the Director of Nursing and Hospital Services. The specialist medical evidence was given by

i. Dr C, who is a consultant neurologist, who also gave oral evidence,

ii.Dr CY, a consultant neurologist from the same hospital who examined Mrs H in March and in July 2000,

iii.Dr Venables, a consultant neurologist and Associate Postgraduate Dean, Faculty of Medicine, Sheffield University examined Mrs H on the 9th August as an independent expert at the request of the Trust,

iv.Professor Jennett, invited by the Trust as an independent expert, examined Mrs H on the 28th September,

v. Dr Young, a consultant neurologist, examined Mrs H, on behalf of the Official Solicitor, on the 2nd October.

The opinion of the consultants was unanimous that Mrs H suffers from permanent vegetative state. Professor Jennett in his written report said that the chances of "even slight improvement are vanishingly small".

7. Dr C in his written and oral evidence explained that he has had Mrs H under his care since 1987. She has particular problems in accepting artificial nutrition and hydration. She was originally fed with a PEG tube. Feeding became difficult and she frequently vomited. Because of this a PEJ tube was reinserted in June. The tube has been subject to recurrent blockage. It became blocked three times since June. Twice it was unblocked but on the third occasion on the 23rd September the medical team was unable to unblock it. Since the 23rd September Mrs H has received no nutrition. She has however continued to receive the prescribed drugs and some degree of hydration which until early October was provided intravenously. That method became unsatisfactory and she was, at the time he gave evidence, receiving hydration sub-cutaneously. That method was also unsatisfactory and only provided about half the hydration that she needs.
8. There are alternative methods of providing artificial nutrition and adequate hydration. It is not just a question of replacing a tube. Each possible method would require some degree of invasive procedure. Each is unsatisfactory and presents serious risks to Mrs H such as septicaemia, risk of perforation or major abdominal surgery by performing a laparotomy. The hospital faces an acute dilemma. Hydration alone is equally unsatisfactory and would create a deterioration in her physical condition which would present considerable nursing problems, would be distressing for her family and would only postpone death for a period of weeks. None of the invasive procedures would appear to be in the best interests of the patient.
9. Professor Jennett in his written evidence and Dr Venables in oral evidence confirmed the considerable risks attendant upon any of the proposed procedures to try to reintroduce artificial nutrition with the probability that it might only survive for a month or two before the problem reoccurred. There was no long-lasting solution. She has probably been in a vegetative state since the 18th January. It is therefore over nine months that she has remained in that state.
10. Unlike Mrs M who could live for many years in her present condition, it is clear that the attempts to stabilise Mrs H`s condition present unacceptable risks for her and a decision in respect of Mrs H was urgent. Both Mrs M and Mrs H are being nursed with a high degree of skill in their respective hospitals. If the artificial nutrition and hydration were withdrawn neither would suffer pain or discomfort. They would continue to be nursed for the brief period before death ensued. In each hospital there is in place support for the families and for the nursing staff.

Permanent Vegetative State

11. In April 1996 the Royal College of Physicians defined the vegetative state as:

" A clinical condition of unawareness of self and environment in which the patient breathes spontaneously, has a stable circulation and shows cycles of eye closure and eye opening which may simulate sleep and waking. This may be a transient stage in the recovery from coma or it may persist until death.

The continuing vegetative state

When the vegetative state continues for more than four weeks it becomes increasingly unlikely that the condition is part of a recovery phase from coma and the diagnosis of a continuing vegetative state can be made.

The permanent vegetative state

A patient in a continuing vegetative state will enter a permanent vegetative state when the diagnosis of irreversibility can be established with a high degree of clinical certainty. It is a diagnosis which is not absolute but based on probabilities. Nevertheless, it may reasonably be made when a patient has been in a continuing vegetative following head injury for more than twelve months or following other causes of brain damage for more than six months."

12. The College set out the criteria for diagnosis of permanent vegetative state. The Report of the College was endorsed by the Conference of Medical Royal Colleges and their Faculties of the United Kingdom. In the United States the Report of the Multi-Society Task Force on PVS was published in the New England Journal of Medicine on the 26th May 1994. It predates the College Report and its findings are similar. The only difference of substance for the purposes of this judgment, as far as I can see, is that the periods suggested before artificial nutrition and hydration might properly be discontinued are shorter than those recommended by the College.

Conclusion on the facts.

13. The diagnosis of permanent vegetative state has been made by four consultants in the case of Mrs M and by five consultants in the case of Mrs H. The diagnosis is not challenged by the Official Solicitor representing each patient. Mrs M has been in that state for over three years and Mrs H for over nine months. Each diagnosis falls within the guidelines of the College. There is the added major problem with Mrs H that to restore nutrition presents considerable risks. On the evidence presented to me it would not be in the best interests of either patient to continue treatment and the case for granting the declarations in respect of each patient is very strong if it is lawful to withdraw the provision of artificial nutrition and hydration.

B The Law

14. I turn now to the law governing the granting of declarations by the courts in these cases. Prior to 2nd October 2000 English domestic law was governed by the principles laid down in the speeches of the House of Lords in Airedale NHS Trust v Bland [1993] AC 789. Those principles have now to be reconsidered in the light of the implementation of the European Convention on Human Rights into our domestic law by virtue of the Human Rights Act 1998. I have to consider principally Article 2 but also Articles 3 and 8.

Article 2.

15. Article, "Right to life" states:

"(1) 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."

(2) Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary:

(a) in defence of any person from unlawful violence;

(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

(c) in action lawfully taken for the purpose of quelling a riot or insurrection"

16. Mr Emmerson QC, for the Official Solicitor, in his submissions posed three key questions:

1. Is a patient diagnosed as in a permanent vegetative state alive?

2. Does the withdrawal of artificial nutrition and hydration constitute an `intentional deprivation of life` within the meaning of Article 2(1)? That question breaks down into two further questions

(a) Is the 'intention` of the withdrawal of treatment to bring about the patient`s death or shorten his or her life?

(b) Does an omission to provide life-sustaining treatment constitute 'an intentional deprivation`?

3. If the withdrawal does not constitute an intentional deprivation of life, are the circumstances such that Article 2 must be taken to impose a positive obligation to provide life-sustaining treatment?

I have found the questions very helpful in my approach to this case and therefore adopt them.

"(1) 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."

1. Is a patient diagnosed as in a permanent vegetative state alive?

17. The answer to question 1 is clearly yes from the description of permanent vegetative state in the Report of the College. The brain stem of the patient remains intact. All the judges in the case of Bland, supported by the medical experts, accepted that he was alive despite the diagnosis that he was suffering from persistent vegetative state, as it was then described. Article 2 therefore clearly protects Mrs M and Mrs H.

2(a). Is the 'intention' of the withdrawal of treatment to bring about the patient's death or shorten his or her life?

18. Turning to question 2(a), Mr Emmerson and Mr Grace QC, for the Trusts, disagree in their submissions on the issue whether the intention to withdraw artificial nutrition and hydration is to bring about the patient`s death or to shorten life. Mr Grace argued that it was not the intention of the Trust to bring about death. Withdrawing treatment would not be ending the life of either patient by the act of another, nor by culpable omission if carried out within the guidelines laid down in Bland. The cause of death would be the disease or injury that created their condition. In my view the issue was decided by the House of Lords in Bland. Although, since the implementation of the Convention on Human Rights, I am no longer bound by the decision in Bland, the speeches of Lord Browne-Wilkinson, at p881, where he said:

".....the whole purpose of stopping artificial feeding is to bring about the death of Anthony Bland".

and of Lord Lowry at p876-7 are most persuasive. I do not consider there is any difference in principle in this context between intention and purpose.

2(b). Does an omission to provide a life-sustaining treatment constitute an intentional deprivation?

19. The question of discontinuing artificial nutrition and hydration to a patient in a permanent vegetative state has not yet arisen in the European Court on Human Rights, (the European Court) and guidance on the applicability of Article 2 has to be gleaned from decisions of that Court dealing with entirely different situations.
20. Article 2 is a fundamental right in the Convention. In McCann v United Kingdom (1995) 21 EHRR 97 the European Court said at page 160

"Article 2 ranks as one of the most fundamental provisions in the Convention - indeed one which in peacetime admits of no derogation under Article 15. Together with Article 3 of the Convention, it also enshrines one of the basic values of the democratic societies making up the Council of Europe .... as such its provisions must be strictly construed."

21. In Stewart v United Kingdom (1983) 7 EHRR 453 the European Commission said there are four sets of situations set out in Article 2 in which the taking of a life by a public authority may be permitted.

"These situations, where deprivation of life may be justified, are exhaustive and must be narrowly interpreted, being exceptions to, or indicating the limits of, a fundamental Convention right."

22. Article 2 clearly contains a negative obligation on the state, to refrain from taking life intentionally. Question 2(b) raises the issue of the extent of the negative obligation not intentionally to deprive a patient of life within the meaning of Article 2(1). Robert Walker LJ in re A (Children) (22nd September 2000, unreported) said:

"The Convention is to be construed as an autonomous text, without regard to any special rules of English law, and the word intentionally in Article 2(1) must be given its natural and ordinary meaning. In my judgment the word, construed in that way, applies only to cases where the purpose of the prohibited action is to cause death."

23. In Widmer v Switzerland Appl 20527/92 (1993) on a petition by a son that the hospital in which his father had died had engaged in 'passive euthanasia', the European Commission held that the failure of the Swiss state to criminalise 'passive euthanasia' did not amount to a breach of the Convention since the state sufficiently punished attacks on life. In Association X v United Kingdom (1978) 14 DR 31 the European Commission held that where a small number of children had died as a result of a vaccination scheme whose sole purpose was to protect the health of society by eliminating infectious diseases, it could not be said that there had been an intentional deprivation of life within the meaning of Article 2, or that the state had not taken adequate and appropriate steps to protect life.
24. It is clear from the judgment of Robert Walker LJ and the decisions of the European Commission in Widmer and Association X that there are limits to the extent of the negative obligation under Article 2(1).
25. The medical profession cannot treat patients who are competent without their consent. To do so, without consent, would be unlawful. A competent adult would have the absolute right to refuse artificial nutrition and hydration even though such refusal would lead to his death. This position is clear from English common law. Lord Goff of Chieveley said in re F (Mental Patient: Sterilisation) [1990] 2 A C 1 at page 73:

" I start with the fundamental principle, now long established, that every person`s body is inviolate."

26. That fundamental principle of English law is also to be found in Article 8 of the Convention. If a patient does not have the capacity to accept or refuse treatment it is the duty of the doctor, under the doctrine of necessity, to treat such a patient if it is in his best interests, see re F (above). As the speeches of the House of Lords showed in Bland, the duty of the doctor is to treat the patient as long as it is in his best interests to have that treatment. If, however, it is no longer in the patient`s best interests to have that treatment, it is not the duty of the medical team to continue it. Lord Goff of Chieveley said at page 867:

".....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."

27. Lord Browne-Wilkinson went further. In his speech at pages 884 to 885 he said:

"Unless the doctor has reached the affirmative conclusion that it is in the patient`s best interests to continue the invasive care, such care must cease....

Only if the doctors responsible for [Anthony Bland`s] 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 [1957] 1 W L R 582 is satisfied.

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 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."

28. Although lack of entitlement to treat an incompetent patient if it is not in his best interests was not specifically referred to in the other speeches in Bland, such treatment would violate the patient`s personal autonomy which he retains despite being incompetent. Lord Browne-Wilkinson`s analysis is clearly correct both at common law and under Article 8.
29. If a decision to cease medical treatment in the best interests of the patient is to be characterised as intentional deprivation of life, in view of the absolute nature of the prohibition on intentional killing, Mr Emmerson submitted that there would be a duty in every case to take steps to keep a terminally ill patient alive by all means possible, and to continue those steps indefinitely, until the patient`s body could no longer sustain treatment, irrespective of the circumstances or the prognosis. I agree with Mr Emmerson that such an interpretation of Article 2 cannot be correct.
30. Although the intention in withdrawing artificial nutrition and hydration in PVS cases is to hasten death, in my judgment the phrase `deprivation of life` must import a deliberate act, as opposed to an omission, by someone acting on behalf of the state, which results in death. A responsible decision by a medical team not to provide treatment at the initial stage could not amount to intentional deprivation of life by the state. Such a decision based on clinical judgment is an omission to act. The death of the patient is the result of the illness or injury from which he suffered and that cannot be described as a deprivation. It may be relevant to look at the reasons for the clinical decision in the light of the positive obligation of the state to safeguard life, but in my judgment, it cannot be regarded as falling within the negative obligation to refrain from taking life intentionally. I cannot see the difference between that situation and a decision to discontinue treatment which is no longer in the best interests of the patient and would therefore be a violation of his autonomy, even though that discontinuance will have the effect of shortening the life of the patient.
31. The analysis of these issues by the House of Lords in Bland is entirely in accordance with the Convention case law on Article 2 and is applicable to the distinction between negative and positive obligations. An omission to provide treatment by the medical team will, in my judgment, only be incompatible with Article 2 where the circumstances are such as to impose a positive obligation on the state to take steps to prolong a patient`s life. Mr Grace made it clear the concern of the Trusts that my judgment dealing with omission to provide treatment should not in future be applied to cases which might arise, in which treatment was given which had the effect of shortening life. I understand his concern. This judgment is dealing only with the situation where treatment is to be discontinued and is not concerned with nor relevant to acts by doctors or other members of the health service, such as the giving of palliative drugs to a terminally ill patient, which might have the effect of shortening his life.
32. Mr Grace advanced the argument that the quality of life of a patient was relevant to the protection under Article 2. I agree however with Mr Emmerson that the quality of life may be relevant to the clinical assessment of whether it is in the patient`s best interests for treatment to continue but does not form part of the question whether this is an intentional deprivation of life within the meaning of Article 2.

3. If the withdrawal does not constitute an intentional deprivation of life, are the circumstances such that Article must be taken to impose a positive obligation to provide life-sustaining treatment?

33. However, Article 2 also contains a positive obligation, to take adequate and appropriate steps to safeguard life, see Osman v United Kingdom (1997) 29 EHRR 245 paragraph 115. In answer to question 3 that positive obligation upon a state to protect life, is not absolute. In Osman v United Kingdom (above) the European Commission explained that

"The first sentence of Article 2(1) also imposes a positive obligation on contracting states that the right to life be protected by law. In earlier cases, the Commission considered that this may include an obligation to take appropriate steps to safeguard life..... While effective investigation procedures and enforcement of criminal law prohibitions in respect of events which have occurred provide an indispensible safeguard and the protective effect of deterrence, the Commission is of the opinion that for Article 2 to be given practical force it must be interpreted also as requiring preventative steps to be taken to protect life from known and avoidable dangers. However, the extent of this obligation will vary inevitably, having regard to the source and degree of danger and the means available to combat it. Whether the risk to life derives from disease, environmental factors or from the activities of those acting outside the law, there will be a range of policy decisions relating, inter alia, to the use of state resources, which it will be for the contracting states to assess on the basis of their aims and priorities, subject to these being compatible with the values of democratic societies and the fundamental rights guaranteed in the Convention."

34. The European Court held in Osman (above) at page 305:

" For the Court, and having regard to the nature of the right protected by Article 2, a right fundamental in the scheme of the Convention, it is sufficient for an applicant to show that the authorities did not do all that could reasonably be expected of them to avoid a real and immediate risk to life of which they have or ought to have knowledge. This is a question which can only be answered in the light of all the circumstances of any particular case."

35. The standard applied by the European Court bears a close resemblance to the standard adopted in the domestic law of negligence and approximates to the obligation recognised by the English courts in the Bolam test (see Bland above). In a case where a responsible clinical decision is made to withhold treatment, on the grounds that it is not in the patient`s best interests, and that clinical decision is made in accordance with a respectable body of medical opinion, the state`s positive obligation under Article 2 is, in my view, discharged. In Widmer (above) the European Commission considered the claim that there was negligent failure on the part of the hospital to treat the applicant`s father. The commission rejected the petition and said that

" the idea that the right of any person to life is protected by law requires the state ..... to take all reasonable steps to protect life."

36. It considered that Switzerland in its legislation had taken sufficient steps to carry out the duty imposed upon it by Article 2. The European Court in Osman (above) said that the positive obligation under Article 2

" must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities."

37. Article 2 therefore imposes a positive obligation to give life-sustaining treatment in circumstances where, according to responsible medical opinion, such treatment is in the best interests of the patient but does not impose an absolute obligation to treat if such treatment would be futile. This approach is entirely in accord with the principles laid down in Bland where Lord Goff of Chieveley said a page 869:

" ....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."

38. In our use of the declaratory jurisdiction of the High Court in PVS cases we impose in our domestic law a higher test than the standard set by the European Court, since the High Court reviews the medical conclusion on best interests and may not necessarily accept the medical opinion, see Frenchay Healthcare NHS Trust v S [1994] 1 F L R 485; 2 All E R 403. Sir Thomas Bingham MR said at page 411:

" It is, I think, important that there should not be a belief that what the doctor says is the patient`s best interest is the patient`s best interest. For my part, I would certainly reserve to the court the ultimate power and duty to review the doctors`s decision in the light of all the facts."

[See also re S (Sterilisation: Patient`s Best Interests) [2000] 2 F L R 389]

39. It is also of great significance, in my judgment, that discontinuance of artificial nutrition and hydration in PVS cases is accepted in many parts of the world both in common law and civil jurisdictions. In some countries there are constitutional guarantees such as a Bill of Rights in New Zealand, legislation in Denmark, the Civil Code in France. A parens patriae jurisdiction is applied in parts of the United States and in Ireland. The jurisdictional basis varies and thought processes differ but the conclusions that there is no continuing obligation to maintain life in the circumstances of PVS patients and that it is compatible with the right to life to withdraw artificial nutrition and hydration in such cases are the same, see Auckland Area Health Board v A-G [1993] 1 NZLR 235; Cruzan v Director Missouri Dept of Health (date) 110 S Ct 2841; re G [1997] 4 LRC 146; re a Ward of Court [1995] 2 IRLM 901; Clark v Hurst [1992] 4 S A 630;, Law Hospital NHS Trust v Lord Advocate and Another [1996] 2 F L R 407; see also "Reporting on Persistent Vegetative State" Grubb et al (1998) Med L Rev 6(2) 161-210. The decision of the House of Lords forms an important part of international jurisprudence on this subject. The existing practice in the United Kingdom is accordingly compatible with the values of democratic societies.

Article 8.

40. Before completing the answer to question 3, I turn to look in a little more detail at the rights encapsulated in Article 8, to which I have already briefly referred, and the competing submissions addressed to me. The relevant part of Article 8 which is headed "Right to respect for private and family life" states:

"1. Everyone has the right to respect for his private and family life, his home and correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society .....for the protection of health."

41. As I have already said Article 8 protects the right to personal autonomy, otherwise described as the right to physical and bodily integrity. It protects a patient`s right to self-determination and an intrusion into bodily integrity must be justified under Article 8(2), see X and Y v The Netherlands (1895) 8 EHRR 235; Peters v The Netherlands (1994) 77A/B DR. Mr Grace suggested that Article 8 may be in conflict with Article 2 and is to be balanced against Article 2. I prefer however the submission of Mr Emmerson that, in seeking to determine the scope of the positive obligation in Article 2, assistance can be derived from the provisions of Article 8. Mr Grace asked me to take into account under Article 8 the views and feelings of the families. They are, of course, important considerations for the hospitals treating these patients to take into account. It is not necessary for me in the present cases to come to a conclusion whether the wishes and feelings of the families form part of the patient`s right to respect for family life under Article 8 in situations where the patient is insensate. If they are relevant they cannot outweigh any positive obligation on the state to maintain the patient`s life. I rather doubt that the families have rights under Article 8 separate from the rights of the patient, but a decision on that issue also is not a necessary part of my overall decision.

Article 3

42. Article 3 "Prohibition of torture" states:

"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."

43. I am asked by Mr Grace to consider the implications of Article 3 to the continuation of treatment which is futile. Mr Wood, on behalf of Alert, wished me to consider Article 3 on the basis that it was relevant to the withdrawal of artificial nutrition and hydration and would be breached during the short period leading up to the death of the two patients. I am satisfied that Article 3 does not apply to either situation. Clearly the continuation of futile treatment or the withdrawal of such treatment cannot be described either as torture or as punishment. The issue is whether either is `degrading treatment`. In Ireland v the United Kingdom (1978) 2 EHRR 25 the European Court said, in the context of interrogation tactics in Northern Ireland, that degrading treatment meant

"...ill-treatment designed to arouse in victims feelings of fear, anguish and inferiority, capable of humiliating and debasing them and possibly breaking their physical or moral resistance. "

44. In D v United Kingdom (1997) 24 EHRR 423 a broader approach was adopted in respect of the proposed deportation of an AIDS patient from the United Kingdom to St Kitts. The European Court said:

"The Court must reserve to itself sufficient flexibility to address the application of that Article in other contexts which might arise. It is not therefore prevented from scrutinising an applicant`s claim under Article 3 where the source of the risk of prescribed treatment in the receiving country stems from factors which cannot engage either directly or indirectly the responsibility of the public authorities of that country, or which, taken alone, do not in themselves infringe the standards of that Article. To limit the application of Article 3 in this manner would be to undermine the absolute character of its protections."

45. The European Court held that to return him to St Kitts would amount to inhuman treatment.
46. Mr Grace submitted that Article 3 can be invoked to ensure protection of a PVS patient`s right to die with dignity and that it was degrading to enforce the continuation of life in those circumstances. He suggested that it was not necessary in order for Article 3 to apply that the person within its protection had to be aware of the treatment complained of. The purpose of Article 3 was to outlaw treatment which is inhuman or degrading and is objective as well as subjective. Mr Emmerson submitted that Article 3 did not apply to an insensate patient and that for it to apply a person so treated had to be conscious of suffering. He further submitted that administration of medical treatment in good faith is unlikely to be a violation of Article 3.
47. Two decisions of the European Court support Mr Emmerson`s submission. In T and V v United Kingdom (1999) 7 BHRC 659 the European Court said at page 682-3:

"Ill-treatment must attain a minimum level of severity if it is to fall within the scope of article 3. The assessment of this minimum is, in the nature of things, relative; it depends on all the circumstances of the case, such as the nature and context of the treatment or punishment, the manner and method of its execution, its duration, its physical or mental effects and, in some instances, the sex, age and state of health of its victim.

Treatment has been held by the court to be `inhuman` because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering, and also `degrading` because it was such as to arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them. In order for a punishment or treatment associated with it to be `inhuman` or `degrading`, the suffering or humiliation involved must in any event go beyond the inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment. The question whether the purpose of the treatment was to humiliate or debase the victim is a further factor to be taken into account, but the absence of any such purpose cannot conclusively rule out a finding of violation of article 3."

48. In Herczegfalvy v Austria (1992) 15 EHRR 437 the Court said at page 484:

" ....as a general rule, a measure which is a therapeutic necessity cannot be regarded as inhuman or degrading. The Court must nevertheless satisfy itself that the medical necessity has been convincingly shown to exist."

See also X v Federal Republic of Germany App. No. 10565/83 (forcible feeding of a prisoner on hunger strike not in violation of Article 3.)

49. On the assumption that Article 3 requires to be considered, I am satisfied that the proposed withdrawal of treatment from these two patients has been thoroughly and anxiously considered by a number of experts in the field of PVS patients and is in accordance with the practice of a responsible body of medical opinion. The withdrawal is for a benign purpose in accordance with the best interests of the patients not to continue life-saving treatment it is legitimate and appropriate that the residual treatment to be continued until death. I am, moreover, satisfied that Article 3 requires the victim to be aware of the inhuman and degrading treatment which he or she is experiencing or at least to be in a state of physical or mental suffering. An insensate patient suffering from permanent vegetative state has no feelings and no comprehension of the treatment accorded to him or her. Article 3 does not in my judgment apply to these two cases.
50. Mr Emmerson raised certain issues which might arise in the future. It is not necessary nor helpful for me to set them out or comment on them when they are not necessary to the present judgment.

Conclusion

51. I am entirely satisfied on the facts and on the law that it is in the best interests of Mrs M and of Mrs H not to continue the artificial nutrition and hydration and that it is lawful for the Trusts to withdraw that artificial nutrition and hydration. For the reasons given in this judgment I granted the declarations in respect of both patients on the 8th October.