1. Price, D Fairly Bland: an alternative view of a supposed new “Death Ethic” and the Bma guidelines’ (2001) 21(4) Legal Studies 618,CrossRefGoogle ScholarPubMedcommenting, inter alia, on

2. Price, ibid, at 619.

3. Airedale NHS Trust v Bland[1993] AC 789 at 898.

4. Price, above n 1, at 619.

5. He writes (ibid, at 638): ‘The softening [of vitalism] engendered by the modified sanctity of life principle however (excluding the need to administer futile or excessively burdensome treatment), is no more than a very minor concession, or sop, to opponents and it remains unacceptably sweeping’. See also ibid, at 618, 621 and 643.

6. Ibid, at 621 and 643.

7. J Keown ‘Restoring moral and intellectual shape to the law after Bland’[1997] 113 Law Quarterly Review 481 at 487.

8. Price, above n 1, at 621.

9. Ibid, at 624–625.

10. Ibid, at 641.

11. Keown, above n 7; J Keown and L Gormally ‘Human dignity, autonomy and mentally incapacitated patients: a critique of Who Decides?’[1999] 4 Web J Current Legal Issues; and J Finnis ‘Bland: crossing the rubicon?’[1993] 109 Law Quarterly Review 329, all cited by Price, above n 1, at n 3.

12. Keown, above n 7, at 485–486.

13. Price, above n 1, at 626–627 quoting Keown, above n 7, at 500.

14. Ibid, at 627. Original italics.

15. See text above at n 13.

16. Price, above n 1, at 628.

17. Ibid.

18. Keown, above n 7, at 486.

19. Price, above n 1, at 628.

20. Ibid. And as for the concept of ‘dying’ being too crude a class of case ‘where treatment may legitimately be withdrawn or withheld’, if Price is implying that the SOL condones the withholding or withdrawal of all treatment from the dying, he is mistaken.

21. Ibid, at 627 (original emphasis).

22. See text above at n 13.

23. That the core purpose of medicine is restoration to health was endorsed by Devlin J in R v Adams (unreported) 1957; see Devlin, P Easing the Passing (London: Bodley Head, 1985) p 171.Google ScholarSee also Airedale NHS Trust v Bland[1993] AC 789 at 809 per Lord Bingham of Cornhill. Having quoted the SOL's understanding of the primary role of medicine as being the restoration of health, Price comments: ‘But “medicine” and “health” do not exist in a vacuum divorced from the individual to whom they attach. They have no “end in themselves”, but are intended for the benefit of the individual’ (Price, above n 1, at 642–643). Of course the role of medicine is to benefit the individual patient. Price's implication that the SOL would deny this is puzzling.

24. Price, ibid, at 629 (original emphasis).

25. Ibid, at 630.

26. Ibid (original emphasis).

27. Price's misunderstanding of the SOL also clouds his analysis of the question whether there is a duty to tube feed those in PVS. He seems to think that because they cannot suffer discomfort from dehydration (which may not in fact be so; see McCullagh, P Thirst in relation to the withdrawal of hydration’ (1996) 46(3) Catholic Medical Quarterly 3)Google Scholartube feeding could only be justified on the basis of its symbolic significance for society or to prevent distress to carers or relatives, since feeding cannot benefit the patient (Price, above n1, at 632). But why not? Presumably this is because Price believes that life in that condition is not a benefit. But this is merely to assume what needs to be proved. Price nowhere responds to the argument often advanced by SOL ethicists (even though he mentions it; ibid, at 631) that there is a basic duty to feed those in our care who cannot feed themselves as a (not merely symbolic) ‘expression of care for and solidarity with a fellow human being’. Instead, he erects a line of straw men. He states that even if tube feeding were not ‘medical treatment’ this ‘should not necessarily obligate its administration indefinitely and indiscriminately’ (ibid, at 632); that all human beings have moral worth but ‘that does not require that we should ignore their underlying condition in assessing whether a particular treatment would further their best interests’ (ibid, at 640); and that while all human beings possess equal worth ‘this should not be taken to mandate the need for equal treatment regardless of their individual circumstances’ (ibid, at 641 (original emphasis). Of course not, and the SOL would support none of these claims.

28. Euthanasia, Ethics and Public Policy: An Argument against Legalisation (Cambridge: Cambridge University Press, 2002)ch 21.

29. Price, above n 1, at 635 (original emphasis).

30. Ibid, at 635.

31. Ibid, at 636.

32. Section 4(5) of the Mental Capacity Act 2005 therefore rightly provides that, in deciding whether life-sustaining treatment would be in the best interests of an incompetent patient, the person making the determination ‘must not…be motivated by a desire to bring about his death’.

33. Price, above n 1, at 635.

34. Ibid, at 636.

35. However, his agreement seems odd, given his earlier argument that what matters is objective ‘justification’ rather than the agent's purpose. He also oddly asserts that in the typical case of suicide there is no purpose to die, only to escape ‘certain conditions attaching to one's continuing life’ (ibid, at 636). But even if death is not intended as an end in itself, it is certainly intended as a means of escaping those conditions.

36. Ibid. He states that I contend that a doctor who respected a suicidal refusal ‘would be taken to share the individual's suicidal intent’ and would incur liability for assisting suicide (ibid, at 635). My contention is, more accurately (Keown, above n 1, at 80), that the doctor should be liable only for intentional (purposeful) assistance in a patient's suicidal enterprise, not simply for omitting to override the patient's refusal and merely foreseeing the hastening of death.

37. Price, ibid, at 636.

38. Keown and Gormally, above n 11, Part III.

39. Price, above n 1, at 636. He claims that ‘[t]he vetting of individuals’ choices is repugnant to the extent that they would cause no direct harm to others in their implementation’ (ibid, at 641). If he intends this as a general ethical proposition, would he agree that we should permit choices to drive without seatbelts, take hard drugs, commit incest and bestiality, sell ourselves into slavery, be executed rather than be imprisoned, and be tortured and killed on ‘Big Brother’ to boost its ratings?

40. [2001] Lloyd's Rep Med 28.

41. Price, ibid, at 640. Price, above n 1, at 632 n 88. (original emphasis).

42. Ibid, at 641.

43. Ibid, at 619.

44. Ibid, at 640.

45. Ibid.

46. Ibid, at 628.

47. [2000] 4 All ER 961 at 1000.

48. Unfortunately, in the more recent case of Burke v General Medical Council[2004] EWHC 1879 (Admin), [2004] 2 FLR 1121 Munby J not only missed the opportunity to do so but, not least by exaggerating the importance of autonomy, undermined the sanctity of life still further. The case concerned an application for judicial review of the guidance of the General Medical Council on withholding and withdrawing treatment and tube feeding. The applicant, who had a progressive neurological illness, feared that the guidance would allow the withdrawal of tube feeding against his wishes toward the end of his life on the ground that his life was not worth living. The case merits fuller discussion elsewhere. Suffice it here to point out that the judge (who, as counsel to the Official Solicitor in Bland, advanced a vitalistic misunderstanding of the sanctity of life; see Keown, above n 7, at 498–500) drew not on the insightful judgment of Ward LJ in Re A (Children) [2000] 4 All ER 961 but on the controversial judgment of Hoffmann LJ (as he then was) in Bland. Hoffmann LJ's judgment exaggerated the importance of autonomy and misunderstood the sanctity of life (see Keown, above n 28, pp 227–230). For example, it shared Price's apparent belief (see text above n 38) that the decriminalisation of suicide by the Suicide Act 1961 amounted to a condonation of suicide (Airedale NHS Trust v Bland[1993] AC 789 at 827). Munby J held that the General Medical Council guidance was unlawful, not least for giving insufficient weight to patient autonomy. The Court of Appeal reversed Munby J. The court observed: ‘Although we have said that a great deal in the body of the judgment is uncontroversial, we counsel strongly against selective use of Munby J's judgment in future cases’ ([2005] EWCA Civ 1003, [2005] 2 FLR 1223 at para 24). While this warning is welcome, Munby J's judgment is, with respect, more controversial than the Court of Appeal appears to have appreciated.