R v Howe and Bannister established that duress is not a defence to murder. Whilst…
House of Lords judgement:  UKHL 11,  AC 789
In Airedale NHS Trust v Bland, the House of Lords was asked to grant a declaration allowing doctors to remove life-sustaining treatment from Mr Bland without facing liability for his death. Mr Bland was in a persistent vegetative state (PVS), following a crush at the Hillsborough football stadium in 1989. He was being kept alive by doctors through the use of life support machines and artificial hydration and feeding. The medical professionals involved concluded after careful consideration that it was in Mr Bland’s best interests for the life-sustaining treatment to cease and Mr Bland’s parents also wanted to remove this support. Mr Bland himself was unable to express any wishes as regards his treatment. However, there was a question as to whether this removal would amount to an unlawful killing because it would inevitably lead to Mr Bland’s death. This was the issue facing the House of Lords.
The House of Lords unanimously granted a declaration that it would be lawful for medical professionals to remove Mr Bland’s life-sustaining treatment. The judges differed slightly in their reasoning but despite some misgivings, all of the Law Lords based their conclusions around the idea that the withdrawal of treatment by medical professionals is to be viewed in law as an omission and not a positive action. Lord Goff was particularly forceful in this contention, stating that:
“I agree that the doctor’s conduct in discontinuing life support can properly be categorised as an omission. It is true that it may be difficult to describe what the doctor actually does as an omission, for example where he takes some positive step to bring the life support to an end. But discontinuation of life support is, for present purposes, no different from not initiating life support in the ﬁrst place. In each case, the doctor is simply allowing his patient to die in the sense that he is desisting from taking a step which might, in certain circumstances, prevent his patient from dying as a result of his pre-existing condition: and as a matter of general principle an omission such as this will not be unlawful unless it constitutes a breach of duty to the patient…”
Lord Goff held that the cause of death in these circumstances is the underlying reason which required the life-support to be started. When medical professionals remove this life-sustaining treatment, they are simply omitting to prevent this underlying reason from causing the death of the individual.
The benefit of this reasoning is of course, that it does protect medical professionals from facing murder charges when they withdraw life-sustaining treatment from a patient. There is though, no benefit in the Law Lords post-rationalising using unrealistic reasoning once they have reached their desired conclusion.
With respect to the House of Lords and Lord Goff, their reasoning is merely cloaking the modesty of the naked ethical decisions made by the Law Lords. It would be better for the court to be transparent rather than hiding behind the illusory and superficial act/omission distinction.
The position of the House of Lords appears unconvincing for two reasons. Firstly, it is simply a fiction to pretend that there is no positive action on the doctor’s part, in particular when a doctor actually switches off a life support machine. Indeed, some medical professionals have themselves refused to switch off a patient’s life support machine as they regard this action as positively bringing about their patient’s death (For example, Ms B v A NHS Hospital Trust ).
Some of the judges themselves in Bland recognised the difficulties associated with their reasoning and expressed some doubts and the classification of the conduct of the doctors. Lord Mustill labelled it ‘intellectually misshapen,’ highlighting that there was a ‘moral and intellectually dubious distinction between acts and omissions.’
Secondly, it is also possible to apply Lord Goff’s reasoning to circumstances where a defendant conceals the victim’s medication leading to their death as the underlying reason for their death is the condition which requires the medication, not the defendant’s concealment of the medication under Lord Goff’s analysis. This should surely be an action which the law seeks to punish, however if we apply the Bland acts/omissions distinction faithfully then we are incapable of doing so.
In his reasoning, Lord Goff attempted to negate this criticism by attempting to draw a distinction between the actions of a doctor and the actions of a malicious interloper who switches off a life support machine. His Lordship argues that the conduct of the latter ‘cannot possibly,’ be regarded as an omission. Lord Goff would therefore presumably also argue that there is a distinction between a doctor withdrawing medication and a malicious interloper doing the same action.
Lord Goff’s own example actually illustrates that it cannot simply be the distinction between acting and not acting which leads to criminal liability or non-liability. The interloper in Lord Goff’s example commits exactly the same physical action as the doctor. It is impossible to distinguish the two based simply upon their conduct using the acts/omissions boxes. Yet, according to Lord Goff the same physical movement can be categorised as either an act or an omission.
Instead, in order to make this distinction, there must be contextual and ethical factors at play which allow us to justify the doctor’s conduct whilst blaming the interloper for the same conduct. It is really the best interests of the patient and the practical policy decision of protecting doctors which is essentially driving the Law Lords’ manipulation of the irrelevant acts/omissions distinction in this case.
The Law Lords in Bland were also at great pains to use the acts/omissions distinction in order to avoid appearing as if they were legalising euthanasia. Actively bringing about a patient’s death is unlawful whereas the withdrawal of life-sustaining treatment is a lawful omission. However, in reality it is once again a policy decision and a desire to leave this ethically controversial area to Parliament which is driving this conclusion. The use of the acts/omissions distinction to achieve this desired conclusion is unhelpful and avoids debating the important if morally controversial issues.
It is commendable that the judges wished to protect the doctors from unnecessary criminal liability. However the reasoning used turns the law into a difficult fiction which conceals the major issues which the courts and Parliament should be tackling, such as who should decide whether continuing treatment is in the patient’s best interests.
It is submitted that although the outcome of Bland is a desirable and sound one, the legal reasoning behind it is not. It would be beneficial for the illogical and illusory categorisation of the withdrawal of life-sustaining treatment as an omission to be dispensed with. Instead, judges should simply assess whether the circumstances surrounding the case, including the majority of medical opinion, supports the removal of life-sustaining treatment and explicitly acknowledge the difficult ethical decisions which they are making.