Euthanasia
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Law Quarterly Review
1997
Restoring moral and intellectual shape to the law after Bland
John Keown Subject: Health. Other related subjects: Jurisprudence Keywords: Death; Ethics; Medical treatment; Termination Case: Airedale NHS Trust v Bland [1993] A.C. 789 (HL) *L.Q.R. 481 “How can it be lawful to allow a patient to die slowly, though painlessly, over a period of weeks from lack of food but unlawful to produce his immediate death by a lethal injection, thereby saving his family from yet another ordeal to add to the tragedy that has already struck them? I find it difficult to find a moral answer to that question. But it is undoubtedly the law …”. (Airedale N.H.S. Trust v. Bland [1993] A.C. 789 at p. 885 per Lord Browne-Wilkinson.)
INTRODUCTION
IN Airedale N.H.S. Trust v. Bland, the House of Lords held that it was lawful for a doctor to cease tube-feeding his patient who was in a “persistent vegetative state” (pvs) even though this would inevitably lead to the patient 's death and even though, in the express opinion of a majority of their Lordships, the doctor 's intent was to kill. The implications of the case are profound. A leading utilitarian bioethicist and advocate of euthanasia, Professor Peter Singer, has even commented that the case marks the collapse of the traditional Western ethic--the principle of the sanctity of human life. 1 There can be little doubt that the Law Lords dealt a blow to that principle and, although Singer 's comment may be overstated, the blow may yet prove fatal. Whether it does so may well depend on the readiness of their Lordships to reconsider their reasoning in Bland. This paper respectfully argues that they should, not least because their reasoning leaves the law, as Lord Mustill commented, in a “morally and intellectually misshapen” state, prohibiting active but permitting passive medical killing. With few exceptions, notably Professor Finnis 's acute commentary in this journal,2 this cardinal case has inspired
Law Quarterly Review
1997
Restoring moral and intellectual shape to the law after Bland
John Keown Subject: Health. Other related subjects: Jurisprudence Keywords: Death; Ethics; Medical treatment; Termination Case: Airedale NHS Trust v Bland [1993] A.C. 789 (HL) *L.Q.R. 481 “How can it be lawful to allow a patient to die slowly, though painlessly, over a period of weeks from lack of food but unlawful to produce his immediate death by a lethal injection, thereby saving his family from yet another ordeal to add to the tragedy that has already struck them? I find it difficult to find a moral answer to that question. But it is undoubtedly the law …”. (Airedale N.H.S. Trust v. Bland [1993] A.C. 789 at p. 885 per Lord Browne-Wilkinson.)
INTRODUCTION
IN Airedale N.H.S. Trust v. Bland, the House of Lords held that it was lawful for a doctor to cease tube-feeding his patient who was in a “persistent vegetative state” (pvs) even though this would inevitably lead to the patient 's death and even though, in the express opinion of a majority of their Lordships, the doctor 's intent was to kill. The implications of the case are profound. A leading utilitarian bioethicist and advocate of euthanasia, Professor Peter Singer, has even commented that the case marks the collapse of the traditional Western ethic--the principle of the sanctity of human life. 1 There can be little doubt that the Law Lords dealt a blow to that principle and, although Singer 's comment may be overstated, the blow may yet prove fatal. Whether it does so may well depend on the readiness of their Lordships to reconsider their reasoning in Bland. This paper respectfully argues that they should, not least because their reasoning leaves the law, as Lord Mustill commented, in a “morally and intellectually misshapen” state, prohibiting active but permitting passive medical killing. With few exceptions, notably Professor Finnis 's acute commentary in this journal,2 this cardinal case has inspired
Cited: Keith Andrews et al., “Misdiagnosis of the Vegetative State: Retrospective Study in a Rehabilitation Unit” (1996) 313 B.M.J. 13. Supra, n. 51. Another interesting case is Re D, The Times, March 22, 1997. [1981] 1 W.L.R. 1421. See, e.g. Luke Gormally, “Definitions of Personhood: Implications for the Care of PVS Patients” (1993) 9.3 Ethics and Medicine 44 at p. 47. Joseph Boyle, op. cit. supra n. 41. See supra, nn. 51 and 63; Hinchliffe “Vegetative State Patients” (1996) 146 N.L.J. 1579.