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Beyond Bland: a critique of the BMA guidance on withholding and withdrawing medical treatment

Published online by Cambridge University Press:  02 January 2018

John Keown
John Keown*
Affiliation:
Law & Ethics of Medicine, University of Cambridge
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Abstract

In Bland the House of Lords held it lawful to withdraw tube-feeding from a patient in a ‘persistent vegetative state’ (pvs), even with intent to kill him. The British Medical Association (BMA) recently published guidance on the withholding and withdrawal of ‘medical treatment’, so defined as to include food and water delivered by tube. The guidance endorses the withholding/withdrawal of tube-delivered food and water not only from patients in pvs but also from other non-terminally ill patients, such as those with severe dementia or serious stroke. The underlying justification appears (as in Bland) to be that such lives lack worth. This article offers three major criticisms of the guidance. First, its argument that tube-feeding is medical treatment rather than basic care is weak. Secondly, its reasons for not treating or tube-feeding undermine the BMA's longstanding opposition to active euthanasia and active assisted suicide. Thirdly, it relies heavily on legal precedent at the expense of ethical reasoning.

Type
Research Article
Information
Legal Studies , Volume 20 , Issue 1 , March 2000 , pp. 66 - 84
Copyright
Copyright © Society of Legal Scholars 2000

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References

1. Airedale NHS Trust v Bland (1993) AC 789.

2. Withholding and Withdrawing Life-Prolonging Medical Treatment. Guidance for decision making (London: BMJ Books, 1999).

3. Above n 2, p 4, para 2.1.

4. The Working Group comprised: Dr Michael Wilks (Chairman of the Medical Ethics Committee), Dr Andrew Carney, Professor Len Doyal, Professor Raanan Gillon, Professor Sheila McLean, Mr Derek Morgan, Dr Jane Richards, Dr Jeremy Wight and Ms Rosie Wilkinson. It was written by Veronica English, Gillian Romano-Critchley and Ann Sommerville. Above n 2, pp xi-xiii.

5. Above n 2, p xv. Withholding And Withdrawing Treatment: A consultation paper from the BMA's Medical Ethics Committee (BMA, 1998).

6. Above n 2, p ix.

7. Above n 2, p x.

8. ‘BMA's policy condemned as “euthanasia”’ The Times, 12 July 1999.

9. Press Release, Office of the Chief Rabbi, 5 July 1999.

10. See eg, above n 2, p 48, para 18.4.

11. Euthanasia. Report of the Working Party to review the British Medical Association's guidance on euthanasia (London: BMA, 1988). For a thorough critique of the Report, see L Gormally ‘The BMA Report and the Case Against Legalization’ in L Gormally (ed) Euthanasia, Clinical Practice and the Law (London: The Linacre Centre, 1994) p 177.

12. Above n 2, p 6, para 3.3.

13. While it is true that if patients do not receive basic care, such as warmth and sustenance, they will experience discomfort, keeping them comfortable is not the distinctive goal of basic care: ensuring comfort may require the application of medical treatments, such as the administration of morphine.

14. Above n 2, p 7, para 3.4.

15. (1993) AC 789 at 870.

16. (1995) 311 BMJ 1437 (letters).

17. ‘RCN favours stopping active care for Bland’ (1993) 89(6) Nursing Times 7.

18. G Scott ‘In the patient's best interests’ (1993) 7(22) Nursing Standard 19.

19. J E Lennard-Jones ‘Giving or withholding fluid and nutrients: ethical and legal aspects’ (1999) 33(1) Journal of the Royal College of Physicans of London 39 at 43, cited above n 2, p 78, n 58.

20. Above n 2, p 8, para 3.4.

21. Describing the syndrome of pvs, the Principal Medical Officer at the Royal Hospital for Neurodisability wrote: ‘Food and/or liquids placed in the mouth may be swallowed.’ M Tudor ‘Persistent Vegetative State’ (1991) 42(1) Catholic Medical Quarterly 10.

22. See text at n 12.

23. ‘Death from dehydration is a lingering death that can be unpleasant for both patient and observers’: G Craig ‘No man is an island some thoughts on advance directives’ (1999) 49(3) Catholic Medical Quarterly 7 at 11; G Craig ‘On withholding artificial hydration and nutrition from terminally ill sedated patients: the debate continues’ (1996) 22 J Medical Ethics 147; P McCullagh ‘Thirst in relation to the withdrawal of hydration’ (1996) 46(3) Catholic Medical Quarterly 5.

24. See generally J Keown ‘Restoring Moral and Intellectual Shape to the Law after Bland’ (1997) 113 LQR 481.

25. See eg J Boyle ‘A case for sometimes tube-feeding patients in persistent vegetative state’ in J Keown (ed) Euthanasia Examined (Cambridge: Cambridge University Press, 1995) p 189.

26. Above n 2, p 1, para 1.1. See also p 3, para 1.2: ‘Some people believe that there is intrinsic value in being alive and therefore that prolonging life will always provide a benefit to the patient regardless of other any other factors. In this absolute form, this is not a view which the BMA shares.’

27. Above n 2, p 1, para 1.1. See also p 50, para 19.2.

28. Above n 2, p 3, para 1.2. Original emphasis. See also p 28, para 14.2.

29. Above n 2, pp 22–23, para 13.3.

30. Above n 2, p 1, para 1.1.

31. Above n 2, p 2, para 1.2.

32. Above n 2, p 2, para 1.2. It is doubtful whether the term is unavoidable. Other formerly widely-used terms, such as ‘ordinary’ and ‘extraordinary’ treatments have been largely replaced by the more helpful adjectives ‘proportionate’ and ‘disproportionate’ . Indeed, the guidance itself avoids the long-established word ‘futile’ in favour of asking whether treatment would provide a net ‘benefit’.

33. Above n 2, p 3, para 1.2.

34. (1991) 1 FLR 366 at 383-384. Emphasis added. See also Re R (1996) 2 FLR 99, referred to above n 2, pp 51–52, para 19.3.

35. Above, n 2, p 26, para 14.2.

36. Above, n 2, p 29, para 15.1. The guidance seems implicitly to approve of the reasoning in Re T (1997) 1 All ER 906: p 31, para 15.3. This case has, however, been subjected to cogent criticism: see A Bainham ‘Do Babies have Rights?’ (1997) 56(1) CLJ 48.

37. Above n 2, p 3, para 1.2.

38. Above, n 2, p 4, para 1.2.

39. Above n 2, pp 44–45, para 18.1.

40. Above n 2, p ix.

41. Above n 2, p 50, para 19.1. Original emphasis. Footnote omitted.

42. Even though, regrettably, the House of Lords in R v Woollin (1998) 4 All ER 103 has thrown doubt on this crucial distinction in the criminal law.

43. D Morgan ‘The greatest danger’ (1992) 142 NLJ 1652. Though this is true of many cases, it is not true of cases where the doctor withdraws tube-feeding because it is disproportionate. See text at n 25.

44. P Alldridge and D Morgan ‘Ending life’ (1992) 142 NLJ 1536.

45. Above n 44, p 1537.

46. (1993) AC 789 at 899.

47. (1993) AC 789 at 885.

48. Above n 2, p 54, para 21.1.

49. Above n 2, p 56, para 21.4.

50. Above n 2, pp 56–57, para 21.4.

51. Above n 2, p 58, para 22. (b).

52. Above n 2, pp 38–39, para 17.2.

53. Above n 2, pp 41–42, para 17.8.

54. Above n 2, p 57–58, para 22.1 (a).

55. Above n 2, p 58, para 22.1 (a).

56. Above n 2, pp 58–59, para 21.1 (c).

57. Above n 2, p 1, para 1.1. Cf p 4, para 1.2; p 45, para 18.1.

58. Above n 2, p xvii.

59. K Andrews et al ‘Misdiagnosis of the Vegetative State: Retrospective Study in a Rehabilitation Unit’ (1996) 313 BMJ 13.

60. See eg N L Childs and W N Mercer ‘Brief Report: Late Improvement in Consciousness after Post-Traumatic Vegetative State’ (1996) 334 New England J Medicine 24; K Andrews ‘Managing the persistent vegetative state’ (1992) 305 BMJ 486; “Dead” woman casts vote for right to stay alive The Sunday Times, 7 January 1996, p 3.

61. Frenchay NHS Healthcare Trust v S (1994) 1 WLR 601. See J Keown ‘Applying Bland’ (1994) 53(3) CLJ 456.

62. Re D (1997) 38 BMLR 1 at 10. See also Re H (1997) 38 BMLR 11.

63. Above n 24, p 497.

64. See also Re R (1996) 2 FLR 99.

65. Bolam v Friern Hospital Management Committee (1957) 1 WLR 582.

66. See J Keown ‘Doctor Knows Best: The Rise and Rise of the Bolam Test’ (1995) Singapore J Legal Studies 342.

67. Above n 2, p xviii.

68. Above n 2, p xviii.

69. Above n 2, p 44, para 18.1

70. Above n 2, pp ix–x.

71. Above n 2, p 63, para 25.3. Emphasis added. In Bland, Lord Browne-Wilkinson said (1993) AC 789 at 879 that there were an estimated 1,000-1,500 patients in pvs in the country. However, the guidance points out that by the end of 1998 only 18 applications had been made to the courts for declarations in such cases. Above n 2, p 44 para 18.1. Whether this indicates that doctors who think tube-feeding appropriate have indeed interpreted Bland as giving them a discretion, rather than imposing a duty, to withhold tube-feeding, or whether doctors have been omitting tube-feeding without applying for a declaration, is unclear.

72. Above n 2, p 49, para 18.5. Indeed, there is credible evidence that elderly patients in some hospitals are undernourished because there are insufficient staff to help them feed themselves orally. See eg Daily Telegraph, 6 December 1999.

73. Above n 2, p 62, para 24.1.

74. Above n 2, p 62, para 24.1.

75. Above n 2, p 13, para 9.1.

76. See J Keown and L Gormally ‘Human Dignity, Autonomy and Mentally-Incapacitated Patients: A Critique of Who Decides?’ (1999) 4 Web Journal of Current Legal Issues.

77. Above n 11, p 22, paras 83–84; p 63, para 258.

78. Above n 2, p 9, para 3.5.

79. Above n 2, p 15, para 10.1. See also p 24, para 13.5.

80. Above n 2, p 16, para 10.1.

81. Occasionally, the guidance criticises a court decision (see eg above n 2, p 35, para 16.2). This reinforces the impression that, when it does not do so, it agrees with the ethical position adopted by the court and is content to let the legal decision substitute for ethical argument.

82. Above n 24.

83. Above n 2, p 3, para 1.2. See also pp 26–27, para 14.2.

84. Above n 2, pp 53-59, paras 20-22.

85. (1993) AC 789 at 898. Emphasis added.

86. (1993) AC 789 at 887. Emphasis added.

87. (1993) AC 789 at 887. Emphasis added. See also Lord Lowry's reference (at 877) to a ‘distinction without a difference’: and Lord Browne-Wilkinson's admission (at 885) that he found it ‘difficult to find a moral answer’ to criticism that the decision was ‘almost irrational’.

88. S McLean ‘End-of-life decisions and the law’ (1996) 22 J Medical Ethics 261–262.

89. Above n 88. 262.

90. As did the report of its Working Party on euthanasia: above n11. For similar inconsistency see Withholding or Withdrawing Life Saving Treatment in Children. A Framework for Practice (London: Royal College of Paediatrics and Child Health, 1997).

91. Above n 2, p xviii; p 4, para 1.3; p 28, para 14.2.

92. Above n 11, p 46, para 174. Emphasis added.

93. See M J Gunn and J C Smith ‘Arthur's Case and the Right to Life of a Down's Syndrome Child’ (1985) Crim LR 705 who conclude (at 715) that according to Arthur, such a baby has no right to be fed if the doctor and parents decide to let it die. Cf David Poole QC ‘Arthur's Case (1) A Comment’ (1986) Crim LR 383. For a withering analysis of the summing-up see Anon REGINA v ARTHUR: A verdict on the Judge's summing-up in the trial of Dr. Leonard Arthur, November 1981 (Leamington Spa: LIFE, n.d.).

94. Above n 2, p ix. See also p 56, para 21.4.

95. See above, n 66.

96. Above n 2. p xvii