Topics: Medicine, Human, Physician Pages: 37 (11405 words) Published: December 3, 2011

Law Quarterly Review

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.)

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 strikingly little academic analysis. The present paper suggests that the doctrine of the sanctity of life was misrepresented, misunderstood and mistakenly rejected, and argues that the courts should, by reinstating the law's consistent application of that doctrine, restore moral and intellectual consistency, coherence and clarity to the law. *L.Q.R. 482 The paper comprises three parts. Part I outlines three alternative ethical approaches to the valuation of human life: “vitalism”, “sanctity of life”, and “Quality of life” (the reason for the “Q” will appear later); concludes that the sanctity of life offers a middle way between two unethical extremes; and maintains that the law has historically followed this middle way. Part II argues that the Law Lords in Bland swerved from the middle way towards the Quality of life extreme; observes that the case indeed leaves the law in a morally and intellectually misshapen state; and suggests that the swerve may well have resulted from a confusion of the doctrine of the sanctity of life with vitalism. Part III indicates how a coherent understanding of the principle of the sanctity of life, the principle at the heart of the doctrine of the sanctity of life, could have supplied a sound answer to the question raised in Bland and left the law in good shape.

I. HUMAN LIFE AND THE LAW 1. Vitalism v. sanctity of life v. quality of life Before deciding which ethical approach the law ought to take to the valuation of human life, it is important to appreciate that there are at least three competing alternatives.

(i) Vitalism
Vitalism holds that human life is an absolute moral value and that it is wrong either to shorten it or fail to lengthen it. Whether the life be that of an anencephalic newborn (one lacking the cerebral


hemispheres) or a dying centenarian, vitalism prohibits its shortening and requires its preservation. Regardless of the pain, suffering or expense that life-prolonging treatment entails, it must be...
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