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Article in Northern Ireland Legal Quarterly
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(1993) 269
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Doc. No. 1993.007 |
Page 269
'LEGAL DEATH OF BRAIN-DAMAGED
PERSONS'
Francis Bennion
A House of Lords Select Committee
on Medical Ethics is currently sitting with the following terms
of reference-
To consider the ethical,
legal and clinical implications of a person’s right to
withhold consent to life-prolonging treatment, and the position
of persons who are no longer able to give or withhold consent;
and to consider whether and in what circumstances actions that
have as their intention or a likely consequence the shortening
of another person’s life may be justified on the grounds
that they accord with that person’s wishes or with that
person’s best interests; and in all the foregoing considerations
to pay regard to the likely effects of changes in law or medical
practice on society as a whole.
This article is concerned with one
aspect only of this remit, namely the position of persons who
through brain damage are in a permanent vegetative state. I shall
suggest that, the judges having failed to grasp the opportunity
to develop the common law in a suitable way, intervention by
Parliament is now needed.
Legal treatment of those in a permanent vegetative state
Medical science refers to certain
persons who have suffered brain damage as being in a persistent
vegetative state, whether or not there is any possibility of
recovery. If there is no such possibility it is more accurate
to refer to it as a permanent vegetative state, and
that is the term I shall use. It arises where, as in the case
of the Hillsborough
football disaster victim Anthony Bland in Airedale NHS Trust
v Bland, through irreversible brain damage the patient
has no possibility of ever recovering consciousness. Anthony’s
brain had turned to water, and it was not imaginable that, even
if new medical advances as yet unsuspected were in future to
be made, there was any possibility of returning the water back
into brain cells. It is only where, as in his case, the vegetative
state is demonstrably permanent that what I now propose applies.
On the question of the point at
which a person who needs life support is to be treated in law
as dead, the present law relies solely on medical opinion. In
Airedale Lord Goff said of Anthony Bland, who was in a permanent
vegetative state because his cerebral cortex but not his brain
stem had been destroyed-
‘I start with the simple
fact that, in law, Anthony is still alive. It is true that his
condition is such that it can be described as a living death;
but he is nevertheless still alive. This is because, as a result
of developments in modern medical technology . . . it has come
to be accepted that death occurs when the brain, and in particular
the brain stem, has been destroyed . . . The evidence is that
Anthony’s brain stem is still alive and functioning and
it follows that, in the present state of medical science, he
is still alive and should be so regarded as a matter of law.’
The italicised passage is saying
that just because the medical profession does not treat a person
who is in a permanent vegetative state as dead, the law will
not and should not do so either. However the legal considerations
applicable to the situation are not the same as the medical considerations,
and I submit that in law such a person should be treated as dead.
Parliament should now lay down a rule that, where there is no
possibility of restoring consciousness, a person who through
brain damage is in a permanent vegetative state should in law
be treated as dead even though it continues to be true that with
medical assistance ‘his body sustains its own life’,
as Lord Browne-Wilkinson put it. Another judicial essay is to
contrast ‘biological life’ and ‘human life’,
as in the dictum by Thomas J. of the New Zealand High Court that ‘it
surely was never intended that [medical science and technology]
be used to prolong biological life in patients bereft of the
prospect of returning to even a limited exercise of human life’.
Because of new technology the death
of a person now needs to be distinguished from the death of his
or her body. Words like ‘alive’ or ‘living’ have
become ambiguous in relation to people with permanent brain damage.
As the US Supreme Court judge Brennan J said of a person in a
permanent vegetative state ‘there is a serious question
whether the mere persistence of their bodies is “life”,
as that word is commonly understood’.
In my submission it is not. Lord Browne-Wilkinson contrasted ‘medical’ and ‘legal’ death.
However, in my opinion mistakenly, he did not dissent from the
view that they should be treated as the same. Hoffmann J
said of Anthony Bland: ‘His body is alive, but he has no
life in the sense that even the most pitifully handicapped but
conscious human being has a life’. Later he said-
‘There is no question
about his life being worth living or not worth living because
the stark reality is that Anthony Bland is not living a life
at all. None of the things that one says about the way people
live their lives - well or ill, with courage or fortitude, happily
or sadly - have any meaning in relation to him. This in my view
represents a difference in kind from the case of the conscious
but severely handicapped person.’
The law should recognise this vital
difference. It should not allow itself to be governed by the
same test as that applied by the medical profession, since the
relevant considerations are not the same. A person who, through
brain damage, can be proved to have entered at any time into
a state of permanent unconsciousness should be treated in law
as having died at that time even though his body remains alive.
The law should be changed by legislation to make this clear.
As a corollary the legislation would need to impose limited duties
relating to the body of a person who is legally dead but whose
body sustains its life with assistance. It would not be right
for such a living body to be treated as if it were in all respects
a corpse, though of course it should be permissible for those
in charge of it to terminate life support.
A draft Bill
As a legislative draftsman, I offer
the following as the possible wording of a Bill to achieve the
result outlined above.
1.-(1) Subject to the provisions
of this Act, if a person at any time enters into a state of permanent
unconsciousness through brain damage he shall in law be treated
as having died at that time even though his body remains alive.
(2) Without prejudice to
any other method of proof, a person shall be deemed to have entered
at any time into a state of permanent unconsciousness through
brain damage if two registered medical practitioners make a written
statement to that effect in the prescribed manner.
Supplemental
2.(1) The following provisions
apply in relation to the body of a person who is to be treated
by virtue of section 1 as having died.
(2) Any person other than
the person lawfully in possession of the body who, without the
consent of that person, terminates or obstructs any process by
which the body’s life is sustained, or otherwise interferes
with the body while it is still living, is guilty of an offence.
(3) For the purposes of any
enactment or rule of law relating to the treatment of bodies
of deceased persons, the body shall not be treated as such a
body while still living.
In the remainder of this article
I give further arguments in favour of these suggested provisions.
The importance of death
in law
Death is important in law for many
reasons, some of which are mentioned below. Its civil importance
is shown by the requirement to register every death, now set
out in the Births and Deaths Registration Act 1953. The registration
system would work under my proposed Bill, though minor consequential
amendments to the 1953 Act might be required.
The need to be able for legal purposes
to establish the death of a person, even when they may not have
actually died, is shown by the presumption of death after seven
years absence. At common law a person who has not been heard
of for seven years by those who, if he had been alive, would
be likely to have heard of him, is presumed to be dead.
There is no presumption as to the time during the seven years
at which
he died. The Offences against the Person Act 1861 s 57 excepts
from the offence of bigamy a person marrying a second time whose
spouse is subject to the presumption of death following seven
years’ absence.
A class of cases where death is
important concerns succession to property. This was recognised
by the passing of the Cestui que Vie Acts 1666 and 1707 ,
which are still in force. They apply the seven year period to
beneficiaries
under settlements.
Another important category concerns
the law of homicide. Murder carries a mandatory sentence of life
imprisonment. It is obviously wrong that this should apply to
the ‘killing’ of a person who, through brain damage,
is permanently unconscious. Other offences, such as manslaughter,
require corresponding adjustment. (Here I am referring to killing
otherwise than by or with the authority of the person lawfully
in possession of the body.)
The actual time of a person’s
death may have important legal consequences, and should not be
capable of being juggled to meet particular interests. Lord Browne-Wilkinson
said-
‘. . . the timing of
the patient’s death may have a direct impact on the rights
of other parties. In the case of a patient suffering from P.V.S.
[persistent vegetative state] as a result of a road accident,
the amount of damages recoverable will depend on whether the
patient is kept alive or allowed to die. We were told by the
Official Receiver that there have already been cases in which
this factor has been taken into account by relatives of the patient,
though there is no question of that in the present case. Again,
rights of succession to the estate of the patient may well depend
on the timing of his death.’
My draft Bill would deal with this
problem by specifying the time of legal death as the time when
the permanent vegetative state was entered into. The time of
switching off life support would be irrelevant except for the
purposes of clause 2.
The legal
concept of civil death
The primitive legal concept of civil
death shows that, for the sort of reasons discussed above, the
law once felt it should treat as ‘dead’ any person
who, although still living in the physiological sense, was unable
to perform the ordinary functions of a living person. Blackstone
expressed the principle thus-
‘These rights, of life
and member [limb], can only be determined [ended] by the death
of a person; which is either a civil or natural death. The civil
death commences if any man be banished the realm by the process
of the common law, or enters into religion; that is, goes into
a monastery, and becomes there a monk professed: in which cases
he is absolutely dead in law, and his next heir shall have his
estate. For, such banished man is entirely cut off from society;
and such a monk, upon his profession, renounces solemnly all
secular concerns . . . the genius of the English law would not
suffer those persons to enjoy the benefits of society, who secluded
themselves from it, and refused to submit to its regulations.
A monk is therefore accounted civiliter mortuus [civilly dead]
. . . the ordinary [diocesan bishop] may grant administration
[of his estate] to his next of kin, as if he were actually dead
intestate, and such executors and administrators shall have the
same power, and may bring the same action for debts due to the
religious, and are liable to the same actions for those due from
him, as if he were naturally deceased . . . In short, a monk
or religious is so effectually dead in law, that a lease made
even to a third person, during the life (generally) of one who
afterwards becomes a monk, determines [ends] by his entry into
religion: for which reason leases, and other conveyances, for
life, are usually made to have and to hold for the term of one’s
natural life.’
Of course we would not now think
it right to treat a monk as civilly dead. I quote the passage
to show that it is inherent in legal doctrine, for sound reasons
connected with the social purpose of law, that the needs and
expectations of the living should not be blocked by one who has
in social reality, if not in physiological fact, departed this
life. This is applicable nowadays to one who has permanently
lost the power of consciousness yet remains ‘alive’ by
the power of medical science. His entry into that state of permanent
loss should be immediately recognised by the law. If he is married,
his spouse should at once be freed to grieve, and then to carry
on her life as if he had died in the fullest sense. His property
should be dealt with, and his debts discharged. If he has left
a will, that should be executed. His living body should be treated
with respect, but not to the extent given to an ordinary living
body. (Of course all this supposes that there is no scintilla
of doubt about possible recovery of consciousness at some time.)
Supplemental matters
In accordance with ordinary legal
doctrine, the establishing that through brain damage a person
has entered a state of permanent unconsciousness should be treated
as a simple question of fact. It is desirable that an easy procedure
should be laid down, such as certification by two registered
medical practitioners, by which that can be evidenced to the
law’s satisfaction (though other forms of proof should
not be ruled out).
It is most undesirable that the system of recourse to the court
envisaged by the House of Lords in Airedale, following In re
F. (Mental patient: Sterilisation) should be regarded as a
permanent feature. To have to go to court imposes on those responsible
for a person in a permanent vegetative state costs and procedures
which may be found onerous. Apart from the inherent undesirability
of this, it may well discourage relatives and others from taking
the step. This would have the result that a person who ought,
for the reasons I have given, to be treated as legally dead would
not be so treated, or that there would be delay in according
this treatment. As I have said, whether such a person is to be
treated as legally dead should not depend on the views or actions
of relatives or others interested.
If the person in charge of a patient
in a permanent vegetative state discontinues treatment so that
the living body becomes a dead body are they under the present
law guilty of murder? In Airedale Lord Browne-Wilkinson said: ‘Murder
consists of causing the death of another with intent to do so’.
Later (on the same page) he said regarding a possible charge
of murder in that case: ‘As to the element of intention
or mens rea, in my judgment there can be no real doubt that it
is present in this case: the whole purpose of stopping artificial
feeding is to bring about the death of Anthony Bland’.
Both these statements are incorrect. The mental element in murder
is malice aforethought. This goes further than mere intent to
cause death. It requires an unlawful motive. When the death penalty
for murder existed the hangman had an intention to kill the convict,
but this did not make him a murderer. The same applies to the
soldier who kills in battle, or the police officer who kills
a dangerous armed robber.
Murder was defined by Coke as being
committed ‘when a person of sound memory and discretion
unlawfully killeth any reasonable creature in being, and under
the king’s peace, with malice aforethought, either express
or implied’. The element in this definition which is especially
relevant to a person who is in a permanent vegetative state is
the phrase ‘any reasonable creature in being’. Here ‘reasonable’ must
mean ‘capable of reasoning’, though a temporary incapacity
would not disqualify. Where the incapacity is permanent it seems
that Coke’s definition is not complied with.
I conclude by discussing the ways
in which my suggested Bill differs from the law as laid down
by the House of Lords in Airedale. While the House of Lords’ opinions
leave the matter far from clear, I suggest that their decision
could be codified in the following words-
If a person at any time enters
into a state of permanent unconsciousness through brain damage,
even though his body remains alive, it is lawful for those entitled
to possession of the body to terminate its life by ceasing to
feed or otherwise sustain it, though not by directly killing
it.
Their Lordships appeared to think
that such a termination should be carried out only with the approval
of the court. However it seems that this is merely advisory,
and not part of the law. Their Lordships placed stress on the
fact that in the case of Anthony Bland over three years had passed
since he entered a persistent vegetative state, but it seems
that on usual principles the question must simply be whether
as a matter of provable fact a current vegetative state is irreversible
and therefore permanent.
Accordingly I would say that if
my proposed Bill were enacted all but clause 1(1) would be wholly
new law. Clause 1(1) differs from the existing law as codified
above in stating expressly that the person is legally dead, rather
than saying that it is lawful to terminate the body’s life
otherwise than by positive action. The difference is advantageous,
because the law ought not to sanction the killing of a patient
(or even merely of his body) if he is not in law already dead.
[Published in 44 Northern
Ireland Legal Quarterly (1993) 269.]
------------------------------------------------------
.
[1993] 2 WLR 316.
.
Ibid, pp 366-367 (emphasis added).
Ibid,
at p 381. On the same page his Lordship referred to this limited form of existence
as life ‘in the purely physical sense’
In
re J.H.L. (unreported), 13 August 1992 (High Court of New Zealand),
cited Airedale NHS Trust v Bland at 336.
Cruzan
v Director, Missouri Department of Health (1990) 110 S. Ct. 2841
at 2886.
[1993]
2 WLR 316, 381.
Ibid
p 350 (High Court).
Ibid,
p 355.
The
above Bill would require supplemental provisions laying down
the amount of the penalty, defining ‘prescribed’ as
meaning prescribed by regulations, etc. As to the reference in
clause 1(2) to registered medical practitioners, compare Mental
Health Act 1983 s 3(3). The reference in clause 2(2) to ‘the
person lawfully in possession of the body’ derives from
the Human Tissue Act 1961. Consequential amendments might well
be required to enactments concerning death, e.g. the Reserve
and Auxiliary Forces (Protection of Civil Interests) Act 1951
s 61.
For
Northern Ireland see the similar provisions in the Births and
Deaths Registration (NI) Order 1976.
Prudential
Co v Edmonds (1877) 2 App Cas 487 at 509.
Nepean
v Doe d. Knight (1837) 2 M & W 894; Re Phene’s Trusts (1869) LR 5 Ch App 139
The
Life Estates Act (Ir) 1695 followed the 1666 Act, and is still
in force in Northern Ireland; there appears to be no Irish
equivalent of the 1707 Act,
Murder
is further discussed towards the end of this article.
[1993] 2
WLR 316 at 381.
Sir W Blackstone,
1 Commentaries (1765) pp 128-9 (emphasis in original).
[1990] 2
AC 1.
In Airedale Lord Goff quoted with apparent approval the view of the Medical
Ethics Committee of the British Medical Association that ‘the
committee is firmly of opinion that the relatives’ views
cannot be determinative of the treatment’: [1993] 2 WLR
316 at 373-374.
Ibid, p 383.
3
Inst. 47.
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