United Kingdom House of Lords Decisions

[HOUSE OF LORDS]

AIREDALE N.H.S. TRUST RESPONDENTS AND BLAND APPELLANT

Declaration accordingly.

No order as to costs.

Solicitors: Solicitor, Yorkshire Regional Health Authority; Official Solicitor; Treasury Solicitor.

M. B. D.

James Munby Q.C. for the Official Solicitor.

Robert Francis Q.C. and Michael R. Taylor for the health authority.

Anthony Lester Q.C. and Pushpinder Saini as amici curiae.

Cur. adv. vult.

Appeal dismissed.

No order as to costs.

Leave to appeal.

Solicitors: Official Solicitor; Solicitor, Yorkshire Regional Health Authority; Treasury Solicitor.

D. E. C. P.

James Munby Q.C. for the Official Solicitor as guardian ad litem. The significance of the present case cannot be overstated. It concerns matters of life and death. The basic issue is whether to deprive a patient of life-saving treatment, simply on the evaluation by an outsider of his quality of life, amounts to a criminal offence. The Court of Appeal held that if there was no civil liability criminal liability did not arise in the circumstances. But this proposed action is criminal and concerns in fact murder and the mens rea of murder is made out. There are five submissions.

(i) To withdraw the patient's feeding tube is to do an act which will inevitably cause, and is intended to cause, his death. It is, therefore, necessarily unlawful and criminal. This is so whether or not artificial feeding is medical treatment. This submission does not depend upon the existence of any duty.

It states a general proposition. A malevolent person who turns off the power switch of an iron lung containing a patient is guilty of murder, not because he is under any duty towards the patient but because he has deliberately taken the patient's life. Equally the mountaineer on the mountain side who deliberately cuts the rope attached to his companion, thus hurling him to his death, is guilty of murder. There is an “absolute prohibition on a doctor purposely taking life as opposed to saving it:” Reg. v. Cox (unreported), 18 September 1992. It is murder deliberately to hasten death by however short a period of time. “No doctor, nor any man, no more in the case of the dying than of the healthy, has the right deliberately to cut the thread of life:” Reg. v. Adams (unreported), 8 April 1957.

The present type of case is eminently one for consideration by Parliament and not by the courts because the dilemma that it raises cannot be solved by the application of a new principle of law; it depends on the subjective moral stance of the individual judge. But granted that murder and manslaughter are common law offences and therefore that the courts could create a new limb of justifiable homicide, the present type of case is one which by its very nature is non-justiciable. If the parens patriae jurisdiction still existed the submission would be the same. [Reference was made to In re F. (Mental Patient: Sterilisation) [1990] 2 AC 1, 83B–C.]

The discontinuance of mechanical hydration and nutrition involves an act. Since that act inevitably causes death, it cannot ever be lawful to discontinue the mechanical hydration and nutrition of a P.V.S. patient. Moreover, it matters not, for the purposes of this submission, whether artificial feeding is properly to be regarded as medical treatment. To withdraw the patient's feeding tube is “deliberately to cut the thread of life.”

(ii) To withdraw the patient's feeding tube is a breach of the doctor's duty to care for and feed him: discontinuance of mechanical hydration and nutrition involves the withdrawal of food, whether or not it also involves the withdrawal of medical treatment. Since it will inevitably cause, and is intended to cause, his death, it is necessarily unlawful and criminal: see Reg. v. Stone [1977] Q.B. 354, 361E–H, 363F.

This patient is a helpless invalid. The plaintiff and the doctors, having undertaken the burden of caring for him, are under a continuing duty to treat, nurse, care for and feed him: In re F. [1990] 2 AC 1, 52A, 52D, 55E–56D, 69G, 72B, 76G, 77D–F. Prima facie, any breach of that duty which results in the patient's death renders those responsible guilty of murder or manslaughter. A person who chooses to undertake the responsibility of looking after a helpless child or invalid owes a duty at common law to care for the health and welfare of that person by providing food and appropriate medical care. A breach of that duty which causes or accelerates death is murder if the intent was to cause death or really serious bodily harm: Reg. v. Bubb (1850) 4 Cox C.C. 455, 459; Rex v. Gibbins (1918) 13 Cr App R. 134. It is manslaughter if there was reckless disregard of danger to the health and welfare of the infirm person, the carer being either indifferent to an obvious risk of injury to health or actually foreseeing the risk but being determined nevertheless to run it: Reg. v. Stone [1977] Q.B. 354, 363F–H and Reg. v. Smith [1979] Crim L.R. 251. This patient is not dying. There is, therefore, no justification for withdrawing food in order to “ease the passing:” Reg. v. Adams, 8 April 1957.

There is nothing in In re J. (A Minor) (Wardship: Medical Treatment) [1991] Fam. 33 to support the view that withdrawal of food can ever be justified. There is all the difference in the world between withholding medical treatment that is futile or painful and deliberately withholding food. We recognise intuitively that feeding is simply not the same as medical treatment; feeding is a basic necessity of existence, medical treatment is not. The withdrawal of food (like the withdrawal of water or air) necessarily causes death; whatever the condition of a patient, and however confident the medical prognosis, one can never postulate of medical treatment that its withdrawal will necessarily result in death; even an apparently fatal disease may go into spontaneous remission: see In re Quinlan (1976) 355 A.2d 647. In certain circumstances medical treatment can properly be categorised as futile, that is, if it cannot cure or palliate the disease from which the patient is suffering; feeding is never futile.

In terms of the nature and the quality of the act involved, there is no distinction between disconnecting the air supply to a patient in an “iron lung” or a diver under water, and disconnecting the supply of food and water to a patient who is being artificially fed. Air, food and water are all basic necessities of existence. In each of the examples given, human existence is dependent upon the continued functioning of a mechanical supply. Mechanical hydration and nutrition are no more “medical treatment” than is the supply of air to a diver. Even if artificial feeding is properly categorised as “medical treatment” it does not thereby cease to be feeding. Deliberately to discontinue artificial feeding is, just as much as to disconnect the supply of air to a diver, deliberately to cut the thread of life, and thus murder. The point is well expressed in the dissenting judgments in Brophy v. New England Sinai Hospital Inc. (1986) 467 N.E.2d 626, 640, 641. The “best interests” principle propounded in Bolam v. Friern Hospital Management Committee [1957] 1 W.L.R. 582 has no application here. In relation to feeding and the withdrawing of feeding the doctor is in no better position than the lay person.

(iii) In any event, and even assuming that artificial feeding is properly to be regarded as merely medical treatment (it ought not to be), there is no justification for withdrawing that treatment. To withdraw the patient's feeding tube is a breach of the doctor's duty to treat and nurse him. Since it would inevitably cause, and is intended to cause, his death, it is necessarily unlawful and criminal.

Withdrawal of life-sustaining treatment can be justified (if at all) only on the ground set out in In re J. [1991] Fam. 33. It is fundamental that all human life is sacred and that it should be preserved if at all possible: In re T. (Adult: Refusal of Treatment) [1993] Fam 95, 112E. Thus, in In re J. [1991] Fam. 33, 51G, the Court of Appeal correctly approached the question of withholding treatment with a strong predilection in favour of the preservation of life. In In re J. the Court of Appeal also correctly recognised, at p. 46B, the fundamental principle as being “thou shall not kill but needs not strive officiously to keep alive.” There is, therefore, no obligation to persist in medical treatment which is futile. On the other hand, the Court of Appeal in In re J. held, at pp. 51H–52C, 55B–D, that, even where the patient is not dying, and there are steps which can be taken to prevent death, there may none the less be circumstances in which it is lawful to withhold life-sustaining treatment. That approach is wrong because the court is unable to evaluate the consequence of death, that is, non-existence: see McKay v. Essex Area Health Authority [1982] Q.B. 1166, 1181E–G, 1181G–1882A, 1189C–D. As Griffiths L.J. observed, at pp. 1192H–1193D, the question of life as against death is one wholly outside the competence of judicial determination.

The withdrawal of life-sustaining treatment is never justified if the decision involves assessing the quality of the patient's life. There is no obligation to persist with futile treatment. Treatment which is not futile, because it is doing some good, is never to be withheld because of an assessment of the patient's quality of life. Feeding a living patient is not futile. Alternatively, and even assuming that In re J. [1991] Fam. 33 was correctly decided, the circumstances must be “exceptional” or “extreme” to justify the withholding of life-saving treatment: see In re J. [1991] Fam. 33, 53A, 55D, 55E. Such cases will, in the nature of things, be rare.

The critical equation that the court has to carry out is thus one which requires it to balance against the very strong presumption in favour of whatever course of action will prolong life, the patient's quality of life, his pain and suffering and the additional or increased pain and suffering which the treatment itself will cause him. This patient has no sentient or sapient/cognitive functions. He feels no pain and cannot be said to be suffering. There is, therefore, nothing to put in the balance to overturn the presumption in favour of treatment and life. Whether or not In re J. was correctly decided, there is, accordingly, no basis in law for exonerating the plaintiff and those caring for the patient from their primary duty to treat, nurse and feed him. Any breach of that duty which results in death, in circumstances where death is, as here, the intended result, is murder: this is so whether death is brought about by an act or by mere omission.

The decision of Sir Stephen Brown P., ante, p. 805B–D, was wrongly based on a paternalistic assessment of the patient's “best interest” which he erroneously treated as consistent with life-sustaining treatment. That is inconsistent with the libertarian principle of self-determination. It is for the individual, and only the individual, to decide that his life is no longer worth living. There is no room for the court or a doctor to say that the denial of life-sustaining treatment is in a patient's best interests.

In any event, it cannot be said that to deprive the patient of food so that he dies is in his best interests. It may be sensible to consider the relief of pain and distress, even at the price of death, as being in a patient's best interests: In re J. [1991] Fam. 33. Death as such, however, can never be in a patient's best interests. The truth is that the patient, in his present condition, has no interests, other than his own (and the state's) interest in his continued life. It is unreal to suggest that the plaintiff (as opposed to his family) has an interest in “how he will be thought of after his death by those whose opinions matter to him,” or any interest in “dying with dignity” that can be furthered by the indignity of starving him to death, or that he can, in his present condition, achieve “a quiet, proud death, bodily integrity intact:” see Cruzan v. Director, Missouri Department of Health (1990) 110 S.Ct. 2841.

(iv) It is irrelevant that artificial feeding may be contrary to the patient's known wishes: the consent of the patient to the discontinuance of mechanical hydration and nutrition cannot affect the criminal consequences. Alternatively, the discontinuance of mechanical hydration and nutrition can be justified if, but only if, it accords with the clearly expressed wishes of the patient.

Assuming that the deliberate discontinuance of artificial feeding involves an act, as opposed to an omission, it constitutes a criminal homicide, irrespective of motive, and consent can never be a defence: Reg. v. Cox, 18 September 1992. Irrespective of whether it involves an act or an omission, the discontinuance of mechanical hydration or nutrition involves the withdrawal of food, leading to the death of the patient. If that is done without the consent of the patient, it constitutes a criminal homicide. If it is done with the consent of the patient, it constitutes the statutory offence of aiding and abetting a suicide: starving oneself to death is suicide: Cruzan v. Director, Missouri Department of Health, 110 S.Ct. 2841, 2861. It follows that the consent of the patient can never justify the withdrawal of artificial feeding.

This submission does not conflict with the recognition that a patient has an absolute right to refuse medical treatment, even at the price of his own life, since feeding is not medical treatment. In any event there is a clear distinction between not compelling a patient to submit to the insertion of a nasogastric tube (which involves no act, and therefore cannot constitute the offence of aiding and abetting suicide) and the act of removing, or discontinuing the supply of food through, such a tube.

Alternatively, the discontinuance of artificial feeding can be justified only if done in accordance with the patient's known wishes. To discontinue feeing is not in the patient's best interests, and therefore cannot be justified in the absence of the patient's consent; absent consent, the only relevant criterion is best interests. On the other hand, the principle of self-determination operates quite independently of the patient's best interests: the only relevant criterion is the patient's decision, whether or not that is in his best interests.

(v) Assuming that the discontinuance of mechanical hydration and nutrition can ever be justified, the propriety of such a proposal should always be ventilated in judicial proceedings for an appropriate declaration.

Assuming that it is lawful to discontinue the mechanical hydration or nutrition of a P.V.S. patient, the question then arises as to what role the court ought to play. It is clear that the court's “approval” is not required in order to validate or render lawful that which would otherwise be unlawful. The court has no power to grant such “approval.” It can only declare that something is, or is not, lawful: In re F. [1990] 2 AC 1.

It is recognised, however, that, albeit only as a matter of good practice, the sanction of the court, in the form of a suitable declaration, should always first be obtained whenever it is proposed to perform a contraceptive sterilisation on an incompetent patient or, it would seem, to take an organ for transplant from such a patient and, possibly, when “turning off the life support machine:” see In re F. [1990] 2 AC 1, 19D, 33D, 40B, 51G, 52F, 79F. (There is no need to seek a declaration in the case of an abortion: In re S.G. (Adult Mental Patient: Abortion) [1991] 2 F.L.R. 329, or a therapeutic sterilisation: In re E. (A Minor) (Medical Treatment) [1991] 2 F.L.R. 585; In re G.F. (Medical Treatment) [1992] 1 F.L.R. 293.) The reasons for this, as explained in In re F. [1990] 2 AC 1, 56E–H, 78F–79C, 79G–H, apply with added force in the case of steps calculated to lead to the death of the patient. If judicial supervision is necessary as a matter of good practice in the case of a non-consensual sterilisation or organ donation then a fortiori it is required in the case of non-consensual discontinuance of life-sustaining treatment.

The final submission stems from the question: a slippery slope? It is important to appreciate just how far the courts in this country have moved in relation to the treatment of the mentally incompetent in the course of less than four years. The first step was to hold that a mentally incompetent adult could be sterilised: In re F. [1990] 2 AC 1. The next development was the holding that life-sustaining treatment could be withheld from the dying: In re C. (A Minor) (Wardship: Medical Treatment) [1990] Fam. 26. The third step was the holding that life-sustaining treatment could be withheld from the patient who was not dying, on the ground that he should be spared pain and suffering: In re J. [1991] Fam. 33. Sir Stephen Brown P. and the Court of Appeal have now held that life-sustaining treatment can be withheld from an adult patient who is neither dying nor suffering pain or distress: the justification for this advance from In re J. is said to be that there is no quality to the patient's life.

The House of Lords should not shirk the questions: what will the next step be, and where will the process end? If the decision stands, it will be as authority for the proposition that the withdrawal of treatment, even permitting an invalid to die from lack of food, can be justified solely by reference to an evaluation of the quality of the patient's life. No doubt it will soon be suggested that treatment should be withdrawn from a patient enjoying a quality of life greater than the present patient's but which is said, by some outsider, to be a quality of life not worth living. What is to happen on the next occasion when a case like Reg. v. Stone [1977] Q.B. 354 is tried in the Crown Court? Is the defendant to be allowed to argue that in his bona fide opinion his elderly relative was better off dead? What direction is the judge to give the jury?

History teaches that dangers can grow from small beginnings and the best of intentions: “the physician should and may do nothing else but preserve life. Whether it is valuable or not, that is none of his business. If he once commits such considerations to influence his actions, the doctor will be the most dangerous man in the state:” Doctor Christoph Hufeland (Goethe's Doctor), Journal of Practical Medicine and Surgery (1806).

[Reference was also made to Imperial Tobacco Co. Ltd. v. Attorney-General [1981] A.C. 718; In re B. (A Minor) (Wardship: Sterilisation) [1988] A.C. 199; Buck v. Bell (1927) 274 U.S. 200; Couture v. Couture (1989) 549 N.E. 2d 571; In re Guardianship of Crum [1991] 580 N.E.2d 876; Fosmire v. Nicoleau (1990) 551 N.E.2d 77; In re Estate of Longeway (1989) 549 N.E.2d 292; Vogel v. Forman (1968) 512 N.Y.S. 2d 622; In re Westchester Medical Center (1988) 531 N.E.2d 607; Delio v. Westchester County Medical Center (1987) 516 N.Y.S.2d 677 and T. v. T. [1988] Fam. 52.]

Robert Francis Q.C. and Michael R. Taylor for the respondent. It is relevant to consider that the invasive treatment in issue in this case reduces the humanity of the patient in that it reduces him to a machine. He has a right of inviolability. It is said that for the respondent to succeed there would have to be a development of the law of murder, but the course of conduct contemplated here does not come within the law of homicide. The withdrawal of care here would not amount to a positive act but to an act of omission. This omission is not unlawful because there is no duty to provide that which it is proposed to omit.

The patient when found at the Hillsborough stadium was dying. If he had not been found he would have died. The reason he did not do so was because the hospital care he received ameliorated the condition which would have caused death. If the present treatment stops then the original condition of the patient will return.

It is important to distinguish between an act or an omission. It does not require a change in the law or a doctor in the present circumstances to obtain a fiat. There is nothing in the proposed conduct which constitutes the actus reus or mens rea of murder. If, contrary to the foregoing submission, the proposed conduct constitutes an act then one has to ascertain whether the act causes the patient's death and whether the appropriate mens rea of manslaughter or murder is made out. In an “easing the passing” type of case knowledge or foresight is not the same as intent. In the present case doctors wish to remove the treatment and allow the original condition of the patient to resume and nature to take its course. Contrast the present case with that of Reg. v. Cox, 18 September 1992. The medical duty of care includes the provision of nutrition where this is appropriate. Medical care and treatment can only be provided to a mentally competent and conscious adult patient with the patient's consent. A patient who is incapable of giving consent may only be treated if to do so is in his best interests. An informed advance refusal deprives the doctor of any right to give the treatment refused. The right or duty to give a particular form of treatment ceases when it is no longer in the patient's best interests. There is no principle by which the provision of nutrition can be distinguished from other aspects of the doctor's duty of care.

The normal professional standard of care applies to all aspects of the doctor/patient relationship. If acting in accordance with the standard, a doctor may lawfully withhold life-prolonging treatment, such conduct, if followed by death, does not amount to unlawful homicide. In the performance of his duty the doctor will always have to decide whether a treatment should be given, continued, withheld or stopped. If the decision is then implemented, the doctor will have a defence to any claim if he has acted in accordance with proper medical practice.

If the matter comes before the court on an application for a declaration, findings of fact will be made as to the proper medical practice and the patient's best interests. If such findings were contrary to the doctor's previous opinion, he would ignore them at his peril. As to the nature of the best interests test, the test should be the same whether applied by doctors or the court. The test should include consideration of (i) any previous refusal, consent or opinion concerning the proposed treatment; (ii) any evidence of what the patient would have wanted in the circumstances; and (iii) where no evidence of the foregoing exists, the patient's objective best interests. In In re F. [1990] 2 AC 1 it was held that it was in the best interests of a mental female patient, who was incapable of making the decision for herself, for her to be sterilised. The policy behind that decision related to the proper treatment of mental patients. The case did not decide, however, the general issue that a course of treatment once started must be continued indefinitely notwithstanding the circumstances.

A doctor has a duty to provide appropriate medical care and treatment to all patients accepted by him. Where appropriate, that duty includes the provision of nutrition. The precise scope of the care and treatment to be provided will depend on the facts. A specialist to whom a patient is referred for a particular ailment will have no duty in respect of some other problem. On the facts of the present case, this patient was admitted to hospital in a totally helpless state; it follows that the respondent and its staff have assumed responsibility for every aspect of his physical care. The purpose of medical treatment is usually to effect a cure, or to relieve suffering. In many cases the doctor's duty may be to save life, but this is not invariably so. Medical technology has made possible the prolongation of life in circumstances which bring into question a duty which is usually accepted without question. The availability of a means to prolong life does not mean that the means has to be used. A doctor can only provide medical care and treatment to a mentally competent and conscious adult patient with the patient's consent. This well established principle of common law applies to the medical field the principle of self-determination as classically expressed by Cardozo J. in Schloendorff v. Society of New York Hospitals (1914) 105 N.E. 92, 93. 5, 6. This right has been described as no more and no less than the right of a patient to determine for himself whether he will or will not accept the doctor's advice: Sidaway v. Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] AC 871, 882C–E, per Lord Scarman. Thus a patient is entitled to reject treatments which are rational or irrational, for no reason at all: see pp. 904F–905A.

Where a doctor accepts as a patient an adult who is unconscious or otherwise mentally incapable of giving consent, no one is authorised to give consent on his behalf: In re T. [1993] Fam 95, 103A. But the common law provides an exception to the requirement for consent, and gives authority to the doctor to provide treatment which (i) is necessary for the preservation of life, health or well being and/or (ii) where it is necessary in the best interests of the patient: In re F. [1990] 2 AC 1, 52C–D, 55E–F, 56B, 69F–G, 77D, 83H. The authority so given by the common law obviously includes that required to make the relevant decisions which, in the case of the competent patient, would have been made by the patient: see In re F., at pp. 56B–D, 69F, 77D, 83G–H. In this way the patient's right to be treated no less favourably than a mentally competent patient is preserved.

Where before becoming unconscious or mentally incapable of giving consent to treatment the patient has unequivocally declined the treatment in question, the doctor has no right to give it. If the patient has made an anticipatory choice which is clearly established and applicable in the circumstances not to accept treatment, the doctor is bound by that choice: In re T. [1993] Fam 95. Such a choice must be respected even if it would result in the death or serious injury of the patient: see pp. 115F–G. To respect the choice is not to aid and abet suicide, and the patient is not committing suicide in those circumstances. the doctor has no right to continue to provide treatment to a mentally incompetent patient which is no longer in that patient's best interests; alternatively, he is entitled lawfully to withdraw such treatment and care where it would be in accordance with proper medical practice and in the patient's best interests to do so.

The foregoing rules provide a justification for treatment, that is, a defence to an allegation of trespass. It must follow that treatment may only continue for so long as it is in the best interests of the incapable patient, and must then be stopped. But this is so even in the case of life-sustaining or prolonging treatment as shown by such English authority as there is: see In re B. (A Minor) (Wardship: Medical Treatment) [1981] 1 W.L.R. 1421, 1424B–G; In re C. (A Minor) (Wardship: Medical Treatment) [1990] Fam. 26, 35C, 38B and In re J. [1991] Fam. 33. In re J. accurately reflects the application of the common law to uphold the rights of the mentally handicapped and the helpless to be treated as other human beings, and not to be the victims of automatic treatment decisions taken without regard for their real interests. In In re J. (A Minor) (Child in Care: Medical Treatment) [1993] Fam. 15 it was held that the inherent jurisdiction of the court over children would not be exercised to compel doctors to treat their patients in a manner contrary to their clinical judgment. The effect of the decision was to authorise doctors to withhold life-sustaining treatment, even though there is evidence of medical opinion disagreeing with that course of action.

Applying the principles of In re F. [1990] 2 AC 1, it must follow from the foregoing cases, and as a matter of logic, that in the case of unconscious adults the doctors who have assumed the duty to treat must exercise their clinical judgment and decide whether to commence, withhold or withdraw a particular form of treatment in the best interests of the patient, even if the patient's death will, or may, follow.

The same principles apply to the withholding of nutrition as to any other form of care provided by the doctor in the performance of his duty. This can be justified on the following grounds. (i) Artificial feeding by nasogastric tube is part of the medical treatment in respect of which the doctor assumes a duty to provide when he accepts the patient. The majority of common law jurisdictions have adopted this approach: see, for example, in the United States, Barber v. Superior Court of State of California (1983) 195 Cal Rptr. 484 and In re Conroy (1985) 486 A.2d 1209; and the New Zealand case, Auckland Area Health Board v. Attorney-General [1993] 1 N.Z.L.R. 235. The Barber case is of importance for that was a criminal case where an intra-nasal device was withdrawn without the agreement of the court, nevertheless the charge of homicide against the doctor was withdrawn. (ii) Whether or not such feeding is properly described as medical treatment, the duty assumed by the doctor in respect of feeding, as with any other aspect of the patient's care, includes a duty to make decisions in accordance with good professional practice, in the patient's best interests. It is the nature of the duty assumed by the doctor or nurse in such a case which distinguishes it from such cases as Reg. v. Stone [1977] Q.B. 354.

Initially the doctor will decide whether proper medical practice and the patient's best interests require treatment to be given, continued, withheld or stopped. If the decision is then implemented, the doctor will have a defence to any claim if he has acted in accordance with proper medical practice: see In re F. [1990] 2 AC 1, 52D–E, 58C, 69G, 78B–C. On the evidence in this case, proper medical practice, as commended by the British Medical Association guidelines, includes a number of safeguards against erroneous decisions: (i) every effort should be made at rehabilitation for at least the first six months after the injury; (ii) the diagnosis of irreversible P.V.S. should not be considered confirmed until at least 12 months after the injury, unless any decision to withhold life-prolonging treatment would be delayed for that period; (iii) the diagnosis of the treating clinician should be agreed by two other independent doctors; (iv) generally, the wishes of the patient's immediate family will be given great weight: see the Discussion Paper on Treatment of Patients in Persistent Vegetative State, issued in September 1992 by the Medical Ethics Committe of the British Medical Association, pp. 6, 14. Any concern that this approach surrenders powers of life and death to the medical profession is misplaced: any decisions taken without prior reference to the Family Division will have to be examined by the coroner, if death follows, and possibly by other tribunals. Thus the doctors are encouraged to act responsibly by the possible consequences of not doing so.

If the matter comes before the court on an application for a declaration, findings of fact will be made as to the proper medical practice and the patient's best interests. If such findings were contrary to the doctor's previous opinion, he would ignore them at his peril. By contrast, a retrospective court decision that the withholding of treatment had not been in the patient's best interests should not render the doctor who took and implemented such a decision in good faith and in accordance with good medical practice liable to a claim in trespass: the doubt expressed by Staughton L.J. in In re T. [1993] Fam 95, 122E–F on the connected problem of assessing the validity of an advanced refusal of treatment should not be developed to produce such an undesirable result. The solution of Hoffmann L.J., ante, p. 834C–F, should be preferred.

The test should be the same whether applied by doctors or the court. While the evidence available to the doctor may be more limited than that subsequently available to the court, there is no reason why the factors that can properly be included in an assessment of the patient's best interests should differ according to the identity of the decision-maker. In In re F. [1990] 2 AC 1 the House of Lords ruled that the treatment of incompetent patients could be justified by reference to a test of best interests. In that case the assessment of the patient's best interests was necessarily an objective one. But it does not follow that an objective test should always be applicable. There is some previous English authority for the proposition that life-prolonging treatment could be withheld if the patient, if competent, would consider life intolerable, where it has been decided that the patient would have chosen withdrawal of treatment: see In re J. [1991] Fam. 33, 44A–E, 46G, 55F and In re T. [1993] Fam 95, 103B–D.

Whatever test is adopted it should emphasise the individuality of the patient. In a difficult area where there would be a wide range of religious, moral and ethical views of what is appropriate, there would be some danger of these being ignored if a universal objective test of best interests were adopted. The American courts have developed a doctrine known as the “substituted judgment.” While the “substituted judgment” approach may be too elaborate, it contains elements which could be incorporated into the English best interests test. The full range of the “substituted judgment” test can be summarised as follows. (i) The incompetent should have the same rights to decline treatment as the competent; the best interests of the incompetent are not always served by imposing results not mandated as to a competent person: Superintendent of Belchertown State School v. Saikewicz (1977) 370 N.E.2d 417, 428.6. (ii) In the exercise of this right the primary test is subjective in nature: to determine as accurately as possible the wants and needs of the individual, considering the incompetent person's actual interests and wishes, but taking into account the present and future incompetency as a factor, that is, by answering the question: “What would the patient have decided in the circumstances:” Saikewicz case, 370 N.E.2d 417, 431.8, 9 and In re Conroy, 486 A.2d 1209, 1229.18–1231.24. (iii) Where this is impracticable, for example, where the patient has been incompetent all his life, more objective criteria are needed. In In re Conroy, 486 A.2d 1209, 1232.27 et seq., two alternative tests of best interests were formulated in relation to patients of whom there was no evidence of previously expressed wishes, either of which, if satisfied, could justify withdrawal or withholding of treatment: (a) the “limited objective” test, that is, where there is “some trustworthy evidence” that the patient would have refused the treatment, and the decision-maker is satisfied that it is clear that the burdens of the patient's continued life with the treatment outweigh the benefits of that life; (b) the “pure objective” test, that is, where there is no trustworthy evidence that the patient would have refused treatment, if the net burdens of the patient's life with treatment should clearly and markedly outweigh the benefits derived from life.

The same court modified the foregoing tests in relation to P.V.S. patients. In In re Peter (1987) 529 A.2d 419, 425.6 and In re Jobes (1987) 529 A.2d 434, it held that the benefits/burden analysis was impossible in such cases. If there was clear and convincing evidence of such patient's wishes there is no need to embark on such an analysis in any event. Where there was no such evidence, a surrogate decision-maker has to implement as much as possible the decision that the incompetent patient would make if he or she were competent, and take into account previous statements on relevant issues, religious and other values: In re Jobes, 529 A.2d 434, 444.5.

The American substituted judgment standard was derived from the English law of the administration of the estate of a lunatic: see the Saikewicz case, 370 N.E.2d 417, 431. That principle as later elaborated in the making of statutory wills (In re D. (J.) [1982] Ch. 237) may now have an artificiality encouraged by the relevant statutory provisions, but it has the advantage of emphasising the obligation to search for the patient's own wishes.

The assessment of a patient's best interests would include the following considerations. (i) If the patient has, while mentally competent, expressed unequivocal refusal or consent to the course of action proposed, the best interests of the patient are served by respecting the patient's wishes. (ii) If there is no or no clear evidence of the patient's actual wishes, but there is satisfactory evidence of what the patient would have wanted in the prevailing circumstances, his best interests will generally accord with what he would have wanted. (iii) If it is impracticable to determine the patient's best interests by either of the foregoing tests, the decision-maker must decide what are the patient's objective best interests in all the circumstances, taking into account evidence of any religious or other relevant belief that the patient may have had before becoming incompetent. The judgments of the Court of Appeal in the present case appear to support this approach.

The Court of Appeal and Sir Stephen Brown P. have ruled that, for the time being, all decisions to withhold life-prolonging treatment from P.V.S. patients should be referred to the court for approval by way of a declaration. While the public concern about these difficult decisions is well understood, adequate safeguards would be provided by suggesting as good practice the referral only in those cases where one of the following conditions are met: (a) there is known to be a medical disagreement as to the diagnosis or prognosis; (b) the next of kin has disagreed with the medical recommendations; (c) there is any suspicion of an actual or apparent conflict of interests between the next of kin and the patient; (d) there is a dispute between members of the patient's family as to the patient's wishes or interests; (e) there are no next of kin.

Anthony Lester Q.C. and Pushpinder Saini as amici curiae. This appeal raises for the first time in this House a question of great legal, medical and ethical importance: in which circumstances, if any, can a doctor lawfully discontinue life-sustaining treatments (including nutrition and hydration) without which the patient will die?

This issue is justiciable, that is, within the proper province of the judiciary, and capable of being determined by the courts without any usurpation of the functions of the legislative or executive branches of government. Of course, disposal of this appeal will involve ethical considerations, but this does not make it inappropriate for judicial determination. The common law is capable of evolving in the light of changing social, economic and cultural developments: see Reg. v. R. [1992] 1 AC 599.

Subject to the sovereign legislative power of Parliament, it is the vital function of the courts to declare the principles of the common law and to apply them to novel situations in the light of the changing needs of society. The issues raised by the present appeal do not call for the creation of new law, but for the application of established legal principles to a recent and desperate human predicament created by the miracles of modern science. To allow the appeal on the basis that the matter should be dealt with by Parliament would not solve the problem in the present case. It would effectively leave the matter to be dealt with by doctors and nurses without the benefit of any judicial clarification of the legal principles. That would be grossly unfair to the medical profession who would be left in a situation of complete legal uncertainty. Your Lordships' judgments (whether in allowing or dismissing the appeal) will inevitably affect the scope of the doctor's duty in P.V.S. cases and the application of the Bolam test [1957] 1 W.L.R. 582 in such cases. This is because it would be homicide for a doctor, acting in accordance with his medical judgment and the ethical code of his profession to withdraw life-supporting care and treatment from someone in the present patient's condition, or it would be lawful for the doctor to do so. For the reasons given by Judge Learned Hand in his article, “The Speech of Justice” (1916) 29 Harv L.Rev. 617, judges (like doctors) necessarily make daily ethical and moral judgments, whether consciously or unconsciously. In the present case, the House is faced with a choice between an absolutist view of the sanctity of human life leading to the conclusion that the withdrawal of care and treatment and the resulting death amount to culpable homicide, and the view that the patient has interests or rights in his personal privacy, bodily integrity and human dignity which justify such withdrawal by a doctor acting within legally and medically prescribed limits. There is no moral and ethical neutral position to enable the House (whether expressly or impliedly) to abstain from making this choice.

The central submission would be that where one can be medically sure on all the evidence that the patient in P.V.S. is suffering permanently from loss of consciousness without hope of recovery, there is no legal duty to maintain what remains of his or her existence, whether by artificially feeding or by giving medication. It is not in the patient's best interests to do so. In those circumstances, there is no breach of duty or criminal liability in ceasing to feed or otherwise treat the patient. Such a conclusion is in accordance with existing case law; therefore all the judgments below should be affirmed.

As regards the criminal law, there is no quarrel with the Official Solicitor's submission as to the possible existence in the present case of the necessary specific intent and physical causation to satisfy those essential elements of the law of homicide. What is missing, however, is the equally essential element of legal causation to constitute the actus reus of homicide (whether murder or manslaughter). There is simply no unlawful act and hence no criminal liability.

The essential questions for determination in this appeal, and our answers to those questions are as follows. (i) Do nutrition and hydration constitute medical care or treatment? Yes. (ii) Can such nutrition and hydration lawfully be withdrawn from a patient in P.V.S.? Yes, if the treatment decision satisfies the legal test of the patient's “best interests,” even though the patient is a helpless invalid being fed under medical supervision. (iii) If this can be done, who should make decisions about the withdrawal of treatment: families, doctors, the courts, or a combination of them all? The decision is a medical decision to be made by doctors, following (as a matter of good practice) consultation with relatives; however, it is an essential safeguard that a declaration of the court be sought in all cases; such declaratory relief cannot render lawful what would otherwise be unlawful, but it can provide essential safeguards of the interests of all concerned. (iv) How is the criminal law involved in decisions to withdraw treatment which result in death? If the treatment or care decision is lawful, then the criminal law does not become involved; this is because a basic element of criminal liability — an unlawful act (the actus reus) — is not made out, even though it is strongly arguable that the mental element of murder or manslaughter could be established in this case.

It is correct that the courts have in recent years developed the common law in relation to the treatment of incompetent patients. However, it is both unwise and unhelpful to adopt the terminology of a “slippery slope” toward judicially approving euthanasia. The common law is inherently capable of evolving in the light of changing social needs, while setting proper limits to the misuse of power and ensuring that there are adequate safeguards for basic human rights and freedoms.

As the Court of Appeal observed, this case is not a so-called euthanasia case where a doctor, nurse or relative has taken positive steps, from compassionate motives, with the primary purpose of hastening the death of a patient suffering unbearably from a terminal illness; nor is it a case where doctors are seeking to end a human life because of value judgments as to its lack of worth. What the case is about is whether in the view of the patient's doctors and the courts, a particular treatment decision should be taken in his best interests which would remove the artificial support for life and allow him to die.

Although there is no enforceable general right to personal privacy in English law (Kaye v. Robertson [1991] FSR 62) the common law gives effect to what article 8(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (Cmd. 8969) describes as the “right to respect for private … life” or what is described in American jurisprudence as the Anglo-American common law right “to be let alone:” see also the preamble to, and article 17 of, the International Covenant on Civil and Political Rights 1966, by which the United Kingdom is bound; and see Attorney-General v. Guardian Newspapers Ltd. (No. 2) [1990] 1 AC 109, 255H, 260G–H.

The common law ensures respect for personal privacy by means, inter alia, of the principle of self-determination according to which a doctor must not invade the bodily integrity of his patient so as to treat him against his wishes. In the United States this is described as a “constitutional right” but one derived from English common law as declared by Gray J. in Union Pacific Railway Co. v. Botsford (1891) 141 U.S. 250, 251 and by Cardozo J. in Schloendorff v. Society of New York Hospital, 105 N.E. 92: see Cruzan v. Director, Missouri Department of Health, 110 S.Ct. 2841, 2846–2847, 2865. The concept of the inherent dignity of the human being is well recognised. For example, article 7 of the International Covenant on Civil and Political Rights provides that everyone is entitled to be protected from “inhuman and degrading treatment,” including being subjected without the person's consent to medical or scientific experimentation: see also article 3 of the European Convention on Human Rights. Human dignity in the context of the present case is not an abstract metaphysical notion; it is an established and orthodox legal concept which can be judged objectively by a court or tribunal, whether by our courts or by the European Court of Human Rights. There is a social duty to respect the patient's right to, and interest in, personal privacy and human dignity during what remains of his life.

This right, however, is not absolute; nor is the sanctity of human life. Personal privacy has to be balanced against the state's countervailing interest in preserving the sanctity of human life contained in the prohibition of homicide. For example, when Parliament abolished the crime of suicide in 1961 it made the legislative judgment that the personal privacy of the individual took precedence over the state's interest in preserving the sanctity of human life, so that the estate of the dead person no longer became subject to forfeiture to the Crown. The right to privacy of a patient includes the right to be let alone by doctors, nurses, or strangers with no public interest to pursue: see In re T. [1993] Fam 95, 112E–F.

One central problem posed by the present case is what practical and lawful way there is to prevent the loss of the patient's privacy, bodily integrity and human dignity solely because of his incompetence, so as to enable the court to balance the patient's rights and interests against the state's interest in preserving the sanctity of human life. In other words, does the law enable an incompetent patient to be treated no less favourably than a sentient patient as regards a decision to withdraw medical care and treatment so as to protect his personal privacy, bodily integrity and human dignity against an absolutist and dogmatic assertion of the state's interest in preserving human life? See the Cruzan case, 110 S.Ct. 2841, 2892.

It would be a fallacy to suppose that if the appeal were allowed this would mean that the courts would be respecting the patient's privacy, bodily integrity and human dignity. The current invasive measures artificially maintaining his life would then continue without his consent, and without any suggestion by the Official Solicitor, on his behalf, that such measures would respect his privacy, bodily integrity and human dignity. It cannot have been intended, when the parens patriae jurisdiction over incompetent adult patients was removed, to authorise such a gross form of discriminatory treatment against such individuals on the ground of their mental disability. The House in In re F. [1990] 2 AC 1 impliedly recognised the fact that a third party was entitled to take a decision which the patient could not take for herself in the exercise of her right to self-determination so as to enable her to enjoy her private life. The present case requires no more than an application of the analysis advanced in that case to a novel and extreme situation.

Existing common law principles enable the courts to respect the patient's privacy, bodily integrity and human dignity when weighed against the state's interest in preserving human life. There is therefore no need to recognise a new category of justifiable homicide. But there is a need for the House to declare the relevant legal principles which define and limit the scope of the doctor's duty to P.V.S. cases.

The central questions raised in the present appeal have to be answered by the law (whether as enacted by Parliament or as declared by the courts) rather than by the medical profession, although (a) the law should strive to be in accordance with contemporary medical ethics and good medical practice, and (b) evidence from the medical profession is very important about (i) the ethical and practical implications of maintaining “treatment” for someone in persistent vegetative state; (ii) the relevant contents of prevailing codes of medical ethics and advice; (iii) the relationship between the law and the professional judgment of doctors in maintaining or withdrawing “treatment;” (iv) the degree of medical certainty that a vegetative state is “persistent,” in the sense of being permanent when the state has persisted for a given period of time; and (v) the effect of persistent vegetative state upon the patient's sentient and cognitive functions.

Obviously, one should not leave the definition of what is and is not a “worthwhile” life to be decided by a doctor, or by a close relative, or to be decided on wider utilitarian grounds, such as public expenditure. The law does not do so. To leave the definition of life (and hence of the unlawful deprivation of life) to doctors, relatives or to considerations of public utility, would be inconsistent with contemporary moral and religious values and beliefs about the sanctity of life. It would also be contrary to law. This case is difficult because, at first sight, it seems to require a rejection of the vital principle of the sanctity of life in favour of value judgments made by third parties, applying the “best interests” tests in In re F. [1990] 2 AC 1, as to the quality of the further artificial prolongation of the patient's life. However, unless one regards the right to life as absolute and to be preserved in all circumstances, there is no inherent conflict between having regard to the patient's personal privacy, bodily integrity and human dignity, and respecting the sanctity of life. They require mutual recognition and the balancing process to which we have referred. Human life means more than mere metabolic existence, and the principle of sanctity of life embraces the need for full respect to be accorded to the dignity and memory of the individual human being.

The House must decide whether patients in the present patient's condition are to be allowed to die in dignity, or whether they should continue involuntarily to be what was described as “passive prisoners of medical technology” because they are “symbols of life” whose “bodily integrity” must be maintained: Brophy v. New England Sinai Hospital Inc., 497 N.E.2d 626, 641. In some cases the artificial prolongation of corporeal existence must degrade and demean the very humanity which it is meant to serve. Highly invasive medical treatment may perpetuate human existence without hope of consciousness, through a combination of body and feeding tubes that many of whatever religious belief or philosphical conviction might reasonably regard as an insult to life rather than as a proper respect for its sanctity.

The principles of judicial economy and prudence suggest that the House should decide only those matters which are necessary in the particular circumstances of the present case.

A patient who is in a persistent vegetative state and who, as a matter of medical certainty, will never recover to become a sentient individual may reasonably be termed the “living dead:” contrast Auckland Area Health Board v. Attorney-General [1993] 1 N.Z.L.R. 235, 245–247, per Thomas J. However, on currently accepted criteria he is not truly dead and must be treated as a live human being. In theory it would be open to the House to redefine death so as to exclude the “living dead” from the protection of the law of homicide. However, such a legally significant alteration in the law ought properly to be a matter for Parliament, and is not called for in the present case.

The principle of self-determination ensures respect for the patient's personal privacy, dignity and bodily integrity. That principle cannot apply directly in the case of a patient who is incompetent or otherwise incapable of communicating his consent, because the patient cannot communicate his wishes to his doctor. But the law still seeks to ensure respect for the privacy, dignity and bodily integrity of such a patient. Two broad approaches have been evolved for meeting such a situation: (i) the “substituted judgment” test, whereby the decision-maker is required to act as a surrogate for the incompetent patient and to determine what decision the patient would have reached had he been able to do so: that generally necessitates a detailed inquiry into the patient's previously expressed preferences, etc.; (ii) the “best interests” test, whereby the decision-maker is required to follow whatever course is in the best interests of the incompetent patient; in other words, where it is not possible to know the patient's wishes, the decision-maker rather than the patient has to act reasonably to decide what is, in an objective sense, in the patient's best interests.

Of those approaches, (i) has found favour in the majority of United States courts; (ii) has been adopted by a minority of the United States courts (including Stevens J. in the Cruzan case, 110 S.Ct. 2841, 2879), though often in conjunction with (i) so as to create a third “hybrid standards” approach. Approach (ii) has recently been adopted by the New Zealand High Court in Auckland Area Health Board v. Attorney-General [1993] 1 N.Z.L.R. 235. It seems plain from In re F. [1990] 2 AC 1, 52C–D, 55D–E, 69G, 77D, 83H, that approach (ii) is also the approach to be followed in the English courts; that is, a doctor may take treatment decisions with respect to an incompetent patient if and only if they are in the patient's best interests. Nor would it be helpful to introduce a hybrid test combining the best interests test with the substituted judgment test. It does not advance the analysis to attempt to guess at the patient's wishes, when none have been expressed. Of course the doctor should and would take into account the particular personality of the particular patient in assessing what would be in his best interest.

There is no need to seek a speculative answer to the question what would the patient's wishes have been: see In re T. [1993] Fam 95, 103B–D and In re Guardianship of Jane Doe (1992) 583 N.E.2d 1263, 1272–1273. The best interests principle, as applied by the English courts, requires treatment decisions to be made in accordance with a responsible and competent body of professional opinion, and on the basis of the principles set down in Bolam v. Friern Hospital Management Committee [1957] 1 W.L.R. 582: see In re F. [1990] 2 AC 1. [Reference was also made to the Discussion Paper on the Treatment of Patients in a Persistant Vegetative State (Medical Ethics Committee of the B.M.A.), pp. 32–34, 42.]

It is essential that the law strenuously avoids any form of discrimination against incompetent patients. Insistence on heroic but therapeutically useless measures is no more justified for the incompetent patient than it is for the competent: this purported justification is exactly that upon which the Official Solicitor's submissions are predicated. An individual's incapacity, together with the absence of a “living will,” should not serve as a basis for denying him the rights or freedoms which competent patients enjoy in the exercise of their right to privacy and self-determination. This would be to make the incompetent patient into a “second class citizen.” The thrust of the Official Solicitor's submission is that because a patient is incompetent, his doctors are legally obliged to continue or to undertake useless treatment contrary to the ethical codes and practice accepted in their profession. However, everyone has the right to be treated with dignity and respect for personal privacy in living and in dying, and it seems anomalous that this essential right should be denied to those who are incapable of expressing their wishes. There is no reason to assume, as does the Official Solicitor, that because a patient is incompetent he would have chosen to have his life artificially prolonged or his suffering extended; or to define human suffering in such narrow terms as to exclude someone in P.V.S. who has lost all ability to experience. There are objective grounds for concluding that a P.V.S. patient, in the exercise of his right to privacy and self-determination, would have chosen not to have his life artificially prolonged: see the Law Reform Commission of Canada's Working Paper No. 28 (1982) on Euthanasia, Aiding Suicide and Cessation of Treatment, pp. 3–8, 33–34, 36–37, 39, 41, 43, 55, 58–59, 62–66, 69–70 and the Report of the Commission (1983), pp. 22–24, 27.

It has been recognised that in extreme and exceptional circumstances, where legitimate choices affecting the prolongation of life arise, considerations of quality of life play an important part in deciding what are the patient's best interests: see In re J. [1991] Fam. 33, 43F–44F, 46B–F, 50C–D, 51A–F, 54D–G, 55B–56B. This approach is correct in law and is wholly inconsistent with the submissions of the Official Solicitor based on the decision of the Supreme Court of Missouri in Cruzan v. Harmon (1988) 760 S.W.2d 408, which held that no third party can decide to refuse life-sustaining treatment because such a decision is a personal one which can never be “delegated.” That is an absolutist or fundamentalist approach; indeed, the Official Solicitor seeks to argue (contrary to In re J.) that not even pain and suffering, however extreme, can justify the withdrawal of life-sustaining treatment, whether by antibiotics or artificial feeding.

In considering what is in the best interests of a patient in P.V.S., the doctors and the courts are entitled to have regard to the following factors: (i) the degree of medical certainty that the patient will never recover his cognitive functions; (ii) that the patient's physical life can be prolonged only by maintaining artificial support; (iii) that during the prolongation of what remains of his life, the patient will suffer no pain (and experience no pleasure) because he will have no consciousness; (iv) that the patient may have expressed his preferences in an advance directive (that is, a “living will” made orally or in writing); (v) that the patient's close relatives may reasonably regard the further prolongation of his existence by artificial means without hope of the recovery of consciousness as an affront to his human dignity and respect for his personal privacy (see Cruzan v. Director, Missouri Department of Health, 110 S.Ct. 2841, 2864–2871, 2879–2880, 2882–2887, 2889, 2892. The views expressed by the dissenting four justices on those issues were not contradicted by the majority judgment of the American Supreme Court delivered by Rehnquist C.J., upholding the constitutionality of Missouri's strict substituted judgment standard); (vi) that all treatment decisions have to be made within the limits of available resources, and that it would inevitably be necessary to make choices as to the allocation of those resources between the competing claims of patients: see In re J. [1993] Fam. 15. This is a fact which courts, like doctors and hospital administrators, unfortunately cannot ignore, without in any way quantifying the value of an individual's life in financial terms.

In the present case, apart from the unanimous medical evidence and the views of the relatives that it would be an affront to the patient's human dignity and to their memory of him to prolong the “ordeal” of his life by the artificial means available from modern medical technology, given that there is no prospect of his ever recovering consciousness, it is far from “unreal” to suggest that the patient has an interest in how he will be thought of after his death by those whose opinions matter to him. On the contrary, even though the patient is permanently unconscious he has a real interest in being treated with proper respect for his privacy, dignity and his worth. This interest does not depend on his previously expressed wishes; it is an interest which doctors and this House are able to determine objectively.

It is also necessary to consider the precise role of the court in determining the best interests question. In re F. [1990] 2 AC 1 shows that the court's function in the present case (unlike a wardship case) is not to approve or disapprove of the medical care and treatment decision, but to declare whether the course proposed is in the best interests of the patient and is therefore lawful. This is precisely the form of declaratory relief correctly granted by Sir Stephen Brown P. The President and the Court of Appeal were correct in holding that, although the determination of best interests is essentially one for the clinical judgment of doctors, it is essential as a safeguard and for reassurance of the public that a declaration be sought in all future cases. On this issue, we support submission (5) of the Official Solicitor.

It is not helpful to engage in semantic debates as to whether a decision to withdraw treatment constitutes an “act” or a deliberate “omission” for the purposes of the criminal law. The criminal law has developed so as to distinguish between lawful and unlawful conduct (whether consisting of acts or of deliberate omissions) which are factually causative of harm. The issue is not whether the withdrawal of treatment is an act or a deliberate omission, but whether such withdrawal is lawful: see Auckland Area Health Board v. Attorney-General [1993] 1 N.Z.L.R. 235, 248–254. If the conduct is lawful (that is, the actus reus is not made out) that is an end of the matter. If the conduct is unlawful, it is not because of its characterisation as an act or omission but because it fails to meet the “best interests” test, and accordingly satisfies the definition of homicide.

The classic definition of murder is that stated in Coke's Institutes, Pt. III (1797 ed.), p. 47: see Smith and Hogan, Criminal Law, 7th ed. (1992), p. 327. At common law, all unlawful homicides which are not murder are manslaughter. In the present case, the doctors attending the patient face the prospect of prosecution for murder or manslaughter if they terminate his nutrition and hydration.

One can distinguish between two propositions: (i) that the withdrawal of nutrition is a positive act amounting to unlawful homicide and (ii) that the withdrawal of nutrition is an omission when there is a continuing duty to act and also amounts to unlawful homicide. In the context of withdrawing artificial nutrition and hydration it is unhelpful to analyse the situation in terms of acts and omissions: it makes no real difference whether such withdrawal occurs because of failure to reload the machine or a simple withdrawal of the feeding tube; the duty of a doctor can be no greater in respect of such an act or omission. The essential question for the court is whether the treatment decision and its consequences are unlawful. If one can establish that the treatment decision taken by the doctors was lawful then such action is not legally causative of the death, or, alternatively, may be regarded as legally causative of death but not rendering the doctor guilty of homicide since such a treatment decision was itself lawful.

The courts have always distinguished between factual causation and legal causation. The notion of legal causation introduces a normative or prescriptive element into the test: should this action be regarded in law as the cause of death? In deciding the lawfulness of care and treatment decisions in a criminal context the courts have adopted the test as to whether the care and treatment was “not normal” or “palpably wrong;” if this is proved then the treatment is regarded in law as the cause of death: see Reg. v. Malcherek [1981] 1 W.L.R. 690, 696G–697G and Reg. v. Cheshire [1991] 1 W.L.R. 844. In summary, the treatment decision taken by the doctor must be one that is accepted as medically correct in that profession if it is to be regarded as lawful; that is, it must pass the Bolam test [1957] 1 W.L.R. 582.

It follows, therefore, that a doctor who makes a care and treatment decision to withdraw nutrition and hydration which causes or accelerates death is not necessarily criminally liable for homicide. Such an action may not be regarded as the legal cause of death or, alternatively, may be construed as lawful action if the doctor was acting according to accepted medical practice: see Auckland Area Health Board v. Attorney-General [1993] 1 N.Z.L.R. 235, 248–249, 250–251. The premise of the Official Solicitor's submissions is that the doctor is in breach of his duty to treat the patient by withholding feeding: if there is no such breach of duty there is simply no actus reus.

The Official Solicitor's submissions (i) and (ii) do not meet the point that the treatment decision to stop feeding (be it called act or omission) is made lawfully and therefore cannot attract criminal liability. His submissions and examples are perfectly accurate when one considers acts which the law would treat as unlawful, that is, acts not in the best interests of the patient or in accordance with accepted medical standards.

A court has jurisdiction to grant a declaration in the terms granted by Sir Stephen Brown P., though a court will in normal circumstances be slow to grant a declaration as to the criminal consequences of conduct: Imperial Tobacco Ltd. v. Attorney-General [1981] A.C. 718, 741C–742D, 746E, 750F–752E. The rule is not inflexible and in appropriate cases the court will grant declaratory relief as to the criminality or otherwise of both future and past conduct. Since the Attorney-General can seek a declaration that certain future conduct is criminal, as in Attorney-General v. Able [1984] Q.B. 795, it must be possible for any other party to do so.

It is therefore open to a court to grant a declaration as to the lawfulness or otherwise of a decision or proposed decision to withdraw treatment. Such a declaration cannot bind a criminal court (or a coroner); but it would be likely to prejudice the trial of the matter and to guide, though not to fetter, the prosecutorial discretion of the Attorney-General and the Director of Public Prosecutions. Those factors make it appropriate to exercise very sparingly the jurisdiction to grant such declarations of lawfulness. The present case, however, is of a kind eminently suited to the exercise of the jurisdiction if a court does indeed form the view that withdrawal of treatment would be in the patient's best interests.

Sir Stephen Brown P.'s decision was simply a declaration specific to the medical facts of the case, and cannot be authority for the wide propositions advanced by the Official Solicitor. A defendant in a case such as Reg. v. Stone [1977] Q.B. 354, would simply not be able to argue that an elderly relative was “better off dead;” the Official Solicitor ignores the fact that a decision to withdraw treatment is based upon the incompetent patient's best interests which is essentially a medical criterion based upon many factors including, but not limited to, an assessment of quality of life.

The case for the Official Solicitor seems to amount to a plea that the common law should remain static rather than develop as the needs of contemporary society require. Advanced medical technology has solved many problems and also created many new ones. If the law were to remain static rather than being adapted to the new circumstances of today's world this patient would be condemned to the involuntary perpetuation of his mere existence with all its attendant misery and degradation, for years or decades to come. The law does not pursue such a dogmatic, absolute and “vitalist” view of life, prolonged as mere existence without hope of recovery of consciousness. Denying him the right of every competent patient to refuse medical treatment would be to subject the patient to a form of discrimination which the common law should not countenance. To grant these declarations was not to make a “concession” to some interference with human rights and freedoms; it was to affirm those rights and freedoms. [Reference was also made to Attorney-General v. Guardian Newspapers Ltd. (No. 2) [1990] 1 AC 109 and Cruzan v. Harmon, 760 S.W.2d 408.]

Munby Q.C. in reply. If the question is asked: what will cause the patient's death if the order of the Court of Appeal is put into effect? the answer is: it will not be his P.V.S. condition, nor the Hillsborough disaster, but the withdrawal of feeding. The best interests and substituted judgment arguments are moral or ethical; they are not medical. That gives rise to two difficulties. If the doctor can withdraw feeding without first applying to the court for permission, it is placing upon a doctor a moral or ethical duty of judgment. If the matter is dealt with out of court then the decision is taken by doctors out of court who are not experts in moral and ethical issues. If it is taken by the court it is taken by judges who are similarly not experts on moral and ethical issues: see the dissenting judgment of Scalia J. in Cruzan v. Director, Missouri Department of Health, 110 S.Ct. 2841, 2859.

Unless the House embarks on creative law-making one cannot find any category of lawful excuse which covers the point. It will be judicial legislation. The House is being invited to legislate a scheme for doctors to do in the present case what the defendant in Reg. v. Cox, 18 September 1992, could not do, the exemption for which the respondent and the amicus contend is not capable of legal definition.

Appeal dismissed.

No order as to costs.

Solicitors: Official Solicitor; Solicitor, Yorkshire Regional Health Authority; Treasury Solicitor.

J. A. G.