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Doc. No. 1993.009 |
Page 19
'Legal Death of Brain-Damaged
Persons',
Evidence to the House of Lords Select Committee on
Medical Ethics
by Francis Bennion
Note The Committee has 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.
1. I submit the following evidence. My qualifications to do
so are as follows. I have been associated with legislation since
1948, when on coming down from Balliol I worked on Halsbury’s
Statutes for a year. I entered the Parliamentary Counsel Office
(where Government Bills are drafted) in 1953 and in two spells
served a total of 14 years, rising to the rank of Parliamentary
Counsel. In 1968 I founded the Statute Law Society, and was closely
involved in the production of its first three reports on improving
the legislative system. I gave oral and written evidence to the
official Renton Committee on the Preparation of Legislation in
1975. I have written many articles on statute law, and two textbooks.
Statute Law (Longman) was first published in 1980 (third edition
1990). Statutory Interpretation (Butterworths) was first published
in 1984 (second edition 1992). In 1991 I founded the Statute
Law Trust. My experience also includes practice at the Bar and
a period as lecturer and tutor in jurisprudence at St Edmund
Hall, Oxford. Since 1984 I have been a research associate at
the University of Oxford Centre for Socio-Legal Studies and a
member of the University Law Faculty. Apart from a number of
legal textbooks, I have also written two books on ethics: Professional
Ethics: The Consultant Professions and their Code (Charles Knight,
1970) and The Sex Code: Morals for Moderns (Weidenfeld & Nicholson,
1991).
2. Apart from the general remarks in paragraphs 3-6 below, my
evidence is entirely confined to the case of persons who are
in a permanent vegetative state.
General remarks
3. Refusal to receive medical treatment I submit that the present
law under which an adult of full capacity is entitled to refuse
any form of medical treatment, even where it is needed to preserve
his or her life, should be preserved. Especially since the crime
of suicide was abolished, this ranks as a basic human right which
the law should respect. Any contrary consideration can arise
only from adherence to a particular value system (whether or
not religiously inspired). In our multicultural and multi-faith
society it is not the business of the law to uphold by the coercive
force of the state any value system of this kind unless it is
generally agreed and non-controversial. The so-called sanctity
of life is not generally agreed as a blanket concept. Human life
is commonly agreed to be worthy of great respect, but not to
be an overriding value in all cases. On some points, for example
certain cases of abortion, other values are commonly agreed to
override sanctity of life.
4. Euthanasia I support the present law against deliberate intervention
to end life, whether or not the patient gives consent. Euthanasia
is open to too many openings for abuse to be tolerable in a civilised
society.
5. Medical advances I believe that the law should adopt
as a guide the test of whether a person is being kept alive unnaturally,
that is by procedures that are possible today only because of
technological advances and drug development. Where a person is
being kept alive unnaturally in this sense, certain ‘quality
of life’ criteria should be admitted (by the law and medical
ethics) which would not be admissible were the patient being
kept alive ‘naturally’. This is because new techniques
may impose a quality of life on the patient which is below that
resulting from ‘natural’ treatments.
6. Since the patient of full age and capacity has both the right
and ability to choose, we are only concerned here with other
patients. In such cases some person must be given the right to
decide on the patient’s behalf that treatment be discontinued
where their quality of life falls below an acceptable level.
Generally, the best person for this is the medical practitioner
in charge of the patient, with a right of recourse to the court
where a near relative wishes to object. Here advance wishes expressed
by the patient, as by a ‘living will’, should be
accorded respect. The person vicariously taking the decision
whether or not to discontinue treatment should attempt to reach
the decision which the patient would have reached had he or she
been able to take it.
Persons in a permanent vegetative state
7. 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. The following main part of my evidence
is concerned with a particular form of that condition which is
known to medical science as ‘a persistent vegetative state’.
This is the form of it where, as in Airedale NHS Trust v
Bland [1993] 2 WLR 316, through irreversible brain damage the patient
has no possibility of ever recovering consciousness. I will call
this form ‘a permanent vegetative state’, which I
consider a more accurate description. The word ‘persistent’ does
not connote permanence, and it is only where, as in the case
of Anthony Bland, the vegetative state is demonstrably permanent
that what I now wish to say applies. His 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 to brain cells.
8. 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 [by the medical profession]
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.’
9. The italicised passage is saying that 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 are not the same as the medical
considerations, and I submit that in law such a person should
be treated as dead. Because the judges have rejected the opportunity
to lay down this rule, it now falls to Parliament to do so.
10. So my submission is that, in the light of developing medical
science, 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 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’.
11. 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 he did not dissent from the view that they should be
treated 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.’
12. The law should recognise this difference. It should not
be governed by the same test as 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 it 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.
13. As a legislative draftsman, I offer the following as
the possible wording of such a Bill.
1. Death of brain-damaged persons
(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.
2. Supplemental provisions
(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.
14. The above would require further 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.
15. The remainder
of this evidence gives further arguments in favour of these suggested
provisions.
The importance of death in law
16. 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.
17. 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.
18.
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.
19.
Another important category concerns the law of unlawful 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.)
20.
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.’
21. 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.
Civil death
22. 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
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.’
23. 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 developing
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.)
Proof
of death
24. 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).
25.
It is most undesirable that the system of recourse to the
court envisaged by the House of Lords in Airedale NHS
Trust
v Bland, following In re F. (Mental patient: Sterilisation) [1990]
2 AC 1 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 this 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.
Murder
26. 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 guilty of murder? In Airedale NHS
Trust v Bland Lord Browne-Wilkinson said (at 383): ‘Murder
consists of causing the death of another with intent to do
so’.
Later (also at 383) he said regarding a possible charge of
murder: ‘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’.
27. 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.
28. 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.
The decision in Airedale NHS Trust v Bland
29. 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
NHS Trust v Bland. While the House of Lords’ opinions
leave the matter far from clear, I suggest that the 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.
30. 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.
31. 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 approve the killing of a patient who is not in law
already dead.
3 June 1993.
1993.009
------------------------------------------------------
. Airedale NHS
Trust v Bland at 381. On the same page he referred to this limited
form of existence as life ‘in the purely physical sense’.
I 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.
Airedale
NHS Trust v Bland at 381.
Airedale
NHS Trust v Bland at 350.
Ibid., p 355.
Prudential
Co v Edmonds (1877) 2 App Cas 487, 509.
Nepean v Doe
d. Knight (1837) 2 M & W 894; Re Phene’s
Trusts (1869)
LR 5 Ch App 139.
Murder is
further discussed towards the end of this evidence.
Airedale
NHS Trust v Bland at 381.
Sir W Blackstone,
1 Commentaries (1765) 128-9. Emphasis in original.
In Airedale
NHS Trust v Bland at 373-374 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’.
3 Inst. 47.
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