111.Memorandum from the Catholic Union
of Great Britain (MIB 1193)
2. The Catholic Union was founded in 1871
and is an independent lay organisation representing the voice
of lay Catholics in public life and is not party political. Its
President is currently a Labour peer and former Chairman of the
Bar Council, Lord Brennan QC. It has representatives in the regions
and is a consultative organisation of the Catholic Bishops' Conference
of England and Wales.
3. The Union has a number of committees
including the Joint Medico-Ethical Committee with the Guild of
Catholic Doctors and their joint submission is already before
4. These submissions are supplementary to
5. A greater role for patient advocacy or
consultation is a desirable and indeed laudable aim but that concept
is fundamentally different from the concept of an attorney.
6. An attorney has power (within
the scope granted) to order the withdrawal and withholding
of treatment from the patient, as if he were the patient
7. Lasting Attorneys (LPA) and Deputies
(who are likely to be social workers) need not be medically qualified
but will make medical decisions about somebody else's health without
having any clinical duty of care even if they make a clinically
negligent decision that harms the patient. The attorney and Deputy
will thus have power without responsibility and will be clinically
unaccountable. That is a serious lacuna.
8. Almost the same difficulties lie with
advance decisions. The current law provides adequate safeguards
for advance decision making which will be cast aside by MIB. See
the case of Re: AK.
9. The best interests criteria in s.4 of
the Bill are non-clinical and will clash with clinical criteria.
Despite s.21(3)(b) and s.31, an AD or LPA will be able to authorise
withdrawal of treatment (which may include food and fluids) because
s.4 defines such decisions as in the patient's best interests.
The proposed safeguards will therefore not protect the patient
from clinical harm or neglect and s.21(3)(b) and s.31 are therefore
misleading provisions. They are unlikely to prevent breaches of
Articles 2 and 3 of the Human Rights Convention. Recent case law
underscores this point as does the Opinion of leading public lawyer
Richard Gordon QC.
10. Both an AD and an LPA could require
a doctor to withhold treatment (even sustenance by tube) even
if the doctor believes he can restore the patient to health. A
doctor could thus be disciplined or even prosecuted for not
withdrawing clinical treatment that the patient needs in order
to be restored to health. A doctor might even find himself disciplined
or prosecuted for not dehydrating his patient. This is
an impossible position in which to put doctors and breaches the
fundamental medico-legal principle that doctors should first do
no harm (primum non nocere).
11. Moreover, LPAs are likely to be relatives
who might well stand to benefit (eg through a will) from the patient's
death. The Florida cases of Schiavo and Nighbert
are examples of such potential abuses and the current case of
Nockels in Norfolk may well be another.
12. On the other hand statutory consultees
or patient advocates have none of these dangers. Healthcare workers
could be required by law to consult them but will not be bound
by clinically negligent decisions. Such a schema would, in my
view, meet most of the requirements of those seeking a change
in the law but without the dangers I have adumbrated herein.
13. A more detailed analysis follows in
the Annex hereto.
1. The legal background must be considered
when interpreting the various clauses of the MIB. In particular,
the decisions in a few leading cases have tended to blur the distinction
between medical treatment and the provision of "basic care"
eg hygiene, pain relief and, particularly, food and fluids whether
oral or by tube.
2. Most previous consultation papers and
draft bills have made at least a requirement for the provision
of "basic care". That is apparently absent from the
present draft. Thus it is not necessarily clear if such basic
careas a bare minimumis obligatory. Most people
will agree that all patients should be kept clean and, so far
as possible, pain free. But the MIB makes no apparently obligatory
provision for such "basic care".
3. Furthermore, the current position in
case law as regards the provision of tube feeding is far from
unambiguous. It appears that such may be regarded in some cases
as "medical treatment" and thus could be withdrawn if
a group of doctors felt it was not in a patient's best interests.
If food and fluids, however delivered, are withdrawn from a patient
who is not dying, the patient will certainly die from such
withdrawal, usually by dehydrating to death.
4. The current state of case law, where
relevant, is reviewed below.
That discinction will be highly relevant in the case
of Advance Decisions (AD) and Lasting Powers of Attorney (LPA)
as will be seen because both can contain powers to refuse treatment.
If treatment includes food and fluids delivered by tube then the
donee of such powers or the AD itself could require medical staff
to dehydrate a patient to death, a clear and unambiguous example
not only of passive intentional killing (or euthanasia) but one
that a doctor could be ordered to undertake on pain of very serious
Re M and R H and Pretty: Bland
has been declared compatible with the Human Rights Act in the
cases of Re H and Re M  1 All ER 801, by the President
of the Family Division, Dame Elizabeth Butler-Sloss on the rather
unusual grounds that since the withdrawal of the food and fluids
delivered by tube was a withdrawal of "treatment", such
treatment can be withdrawn if a body of doctors expert in that
field would have agreed it was appropriate. This seems to run
counter to the principles set out in R v Gibbins & Proctor
13 Crim App Rep (1919) 134, (and other similar cases R
v Cox (1992) 12 BMLR 38; R v Bodkin-Adams  CLR
365 (CCC)) and, moreover, it is by no means clear that dehydrating
PVS patients to death is a distress-free exercise so as to take
the matter outside the range of "degrading and inhuman treatment"
under Article 3 of the Convention. The decision may well be re-visited
at a higher judicial level, particularly in the light of the decision
in the case of R (Pretty) v DPP (SSHD intervening) 
3 WLR 1589;  1 FLR 268, in which the application of a person
seeking help to commit suicide with legal impunity was refused.
The current law on Advance Decisions: It
has been said by some that such are already binding in law. That
is highly misleading and is an incomplete statement of the law
as it now stands in the light of the leading case of Re: AK
 1 FLR 129. It would be most helpful if the judgement
of Mr Justice Hughes could be quoted in full as it offers very
practical and explicit advice to doctors beyond which it is unnecessary
to go. This is what the judge said at  1 FLR 134E-G:
"It is . . . clearly the law
that the doctors are not entitled so to act if it is known that
the patient, provided he was of sound mind and full capacity,
has let it be known that he does not consent and that such treatment
is against his wishes. To this extent an advance indication of
the wishes of a patient of full capacity and sound mind are effective.
Care will of course have to be taken to ensure that such anticipatory
declarations of wishes still represent the wishes of the patient.
Care must be taken to investigate how long ago the expression
of wishes was made. Care must be taken to investigage with what
knowledge the expression of wishes was made. All the circumstances
in which the expression of wishes was given will of course have
to be investigated. In the present case the expression of AK's
decision are recent and made not on any hypothetical basis but
in the fullest possible knowledge of impending reality."
5. No Duty of Care owed by Lasting Attorneys
6. Provided an attorney acts within his
given powers he cannot be sued, even if his decisions were clinically
bad ones. Whereas doctors have a duty of care and can be sued
for clinical negligence, Lasting Attorneys cannotthey have
no duty of care. The damage may cause financial loss to the donor.
If the attorney is empowered to make medical decisions then the
damage may be lasting or permanent physical damage or even death
to the patient. It is important to realise that provided the attorney
acts within his powers under the MIB, he cannot be sued even if
he makes clinically unsound decisions.
7. More importantly, the powers granted
under an LPA can, if so framed, enable an attorney to require
a doctor to withdraw or withhold treatment from the patient, because
the attorney stands in the shoes of the patientand
the patient has an absolute right to refuse treatment when it
8. Intentional termination of lifea
new prospect under MIB
9. Given that the law recognises (see above)
that in some circumstances even food and fluids by tube
can be withdrawn (because they can be considered treatment in
some circumstances) then a Lasting Attorney will have the power
to order a doctor to withdraw sustenance from a patient.
If sustenance is withdrawn then a patient inevitably dies.
Thus it will be possible for Lasting Attorneys to have power effectively
to order a doctor to bring about a patient's death.
10. Thus doctors could be required
to terminate a patient's life intentionally. If the doctor does
not follow the directive of the Lasting Attorney to withdraw the
"treatment" (or even sustenance by tube) then that doctor
may not only be liable in civil law but may be liable for the
criminal offence of assault. If convicted he could be struck
off the register.
11. Thus the MIB introduces a potentially
odd situation whereby a doctor is criminally liable for
assault if he does not bring about the termination of the
patient's life deliberately and intentionally by withdrawing sustenance.
This brings the law into immediate and serious disrepute by undermining
the very law of homicide. To charge a doctor with assault for
not terminating his patient's life is hardly reasonable,
just or wise. Yet this could happen under the MIB.
12. One must also consider the effect upon
the morale and ethical standards of the Health Service if doctors
can be disciplined or even prosecuted for refusing to terminate
a patient's life by withdrawing sustenance. The principle of "First
Do No Harm" (Primum Non Nocere) is compromised and
the Hippocratic tradition of medicine undermined.
If the doctor is obliged to withdraw sustenance by tube from a
patient on the direction of a Lasting Attorney then a fundamental
principle of medical ethical principles will have been compromised.
Moreover, no doctor will be able to avoid the directive of the
Lasting Attorney since the sanction for disobeying the LPA will
be a very serious one, and even potentially criminal.
13. The activities of negligent or unscrupulous
doctors will be given a plausible cover which might, in fact,
mask a deliberate intention to end life.
14. Further, one must consider the extent
to which ending a patient's life by dehydration is a cruel method
of terminating life. The body dries up, in effect. The eye sockets
dry up, the skin becomes flakey and dry, the tongue dries up and
turns black, and the brain sends distress signals all over the
body: it is an unpleasant way to die and very unpleasant for relatives
to observe. Relatives will ask why the patient cannot be given
a lethal injection and, indeed, some have already said that such
a death is cruel and that a lethal injection should indeed be
administered. That, plainly, is a call for direct, involuntary,
15. Other potential abuses made possible
16. Consider further the situation where
a Lasting Attorney is also a beneficiary under the patient's will
and stands to gain financially by the patient's death. The scope
for abuse is immediately obvious. And in many cases the attorney
is likely to be a close relative who might also benefit
from the will.
17. Lest this scenario be thought unlikely
an example should assist.
18. In a Florida circuit court an order
was made withdrawing and withholding food and fluids from Marjorie
E. Nighbert at the behest of her brother, Maynard Nighbert who
held a durable (ie Lasting) power of Attorney. Miss Nighbert had
suffered a stroke but it was said she had made indications of
wishing to be fed. The court appointed a lawyer to investigate
her capacity but it was concluded that she did not have capacity
to withdraw the LPA and that her brother's decision to require
the doctors to refuse food and fluids must be upheld.
19. Mrs Nighbert died not long thereafter
from lack of food and fluids. Nurses said that she was still making
signs requesting to be fed. It is thought that analgesic pain
relief was administered but that is thought to be insufficient
because dehydration acts upon the osmo-receptors in the brain
which cause overall distress to the person and not just in the
pain centres. Analgesics affect the pain centres not the osmo-receptors.
Mrs Nighbert may well, therefore, have died in great distress.
20. This is but one example of the many
ways in which an LPA can have the effect of undermining
rather than enhancing a patient's autonomy.
21. Moreover the patient may not die but
may, rather, suffer serious long-term damage instead.
22. Consider this example. A young man of
18 who is run over in a motor accident may have suffered a fractured
femur but also been rendered unconscious with suspected brain
damage. He may have an LPA which provides for the withdrawal of
treatment in the event of mental incapacity. In that case the
Lasting Attorney may require the withdrawal of treatment on the
grounds that the patient would not want to survive in a brain
damaged state. The doctor would then be obliged to withhold treatment
even though he could readily treat the fractured femur.
23. Now suppose that the patient after some
months regains consciousness and, in fact, suffers little or no
brain damage, despite the prognosis. The fractured femur will
not heal itself and by the time some months have passed it may
well be too late to heal it. The patient will thus be crippled
for lifeat the age of 18and he will have no remedy
against the Lasting Attorney (acting within the scope of the LPA),
because the attorney has no duty of care and cannot be sued for
clinical negligence, nor against the doctor who will have had
to follow the Lasting Attorney's demand to withhold treatment
and thus is not liable.
24. Thus death may not ensue but, rather,
lasting damage that could cripple a healthy person's life.
25. The same scenario could apply to an
elderly person suffering from, eg stroke. A withholding of treatment
may not necessarily result in the patient's death. They may simply
deteriorate and live a miserable existence for a much longer period
simply because, under the power of the LPA, the Lasting Attorney
required the doctor to withhold treatment. This, indeed, appears
to be what is happening in the Schiavo case in Florida,
26. These are but a few of the potential
hazards of introducing legally binding powers such as that of
a Lasting Power of Attorney.
27. Consultee or Advocate is preferable
to Power of Attorney
28. The desire for relatives, loved ones
and friends to be consulted does not require anything so
sweeping and far-reaching as a power of attorney. A legal requirement
for them to be consulted as either statutory consultees or advocates
is all that is required. Then if the doctor acts without consulting
them he can expect to be open to a civil suit and/or a complaint
to his professional body and the matter would be serious.
29. The unwelcome scenario of a doctor being
required to act against his clinical judgementor
worse to terminate his patient's lifewould, however, be
avoided. Most patients simply wish to be sure that their appointed
advocate or consultee is consulted so that they are kept fully
in the picture by the medical staff and can see that the patient
is being well cared for. That is what most people desire and a
consultee or advocate can achieve that.
30. The establishment of a statutory power
of attorney goes too far and is attended by very considerable
risks not only to the patient but to the medical profession and
to the general public as a whole. This is clear from ss 8, 10,
12 and 13 and the powers of the court set out in ss 21 and 22
do not obviate the problems outlined above since the court will
be concerned to determine whether or not the LPA is valid, not
whether the attorney's decision is clinically negligent. If the
power is valid and not obtained by fraud or undue pressure, the
court's interest lapses save in one circumstance.
31. That is outlined at s 21(3)(b), namely
where the court is satisfied that the Lasting Attorney has behaved,
is behaving or is proposing to behave in a manner incompatible
with the patient's best interests. It can be seen below that there
are considerable problems with the "best interests"
criteria in MIB but the chief problem is that it is clear that,
under the current state of the law (see above) and the wording
of s 4 of MIB, it is not necessarily contrary to the patient's
"best interests", as qualified by s 4, to suffer loss
of life by the withdrawing or withholding of necessary treatment
(or even sustenance by tube).
32. Given the fact that many people, including
doctors, will not be aware of the current state of the law, this
aspect of the MIB may well not be fully appreciated. Once it is
clear that "best interests" may not necessarily rule
out the withdrawing or withholding of necessary treatment (or
even sustenance by tube) from patients, then the dangers can be
readily seen. Since the "best interests" criteria have
been widened by s 4 to accommodate the concepts of LPA and AD
it can be seen that the introduction of these concepts will permit
the new "best interests" criteria to overrule clinical
best interests so that a doctor can be required by the
Lasting Attorney (and an AD) to do what his clinical judgement
rejectsincluding even withdrawing and withholding sustenance
by tube so that the patient then dies of dehydration. Thus it
may not necessarily be against the patient's "best interests"
to terminate his or her life by removing necessary treatment (or
even sustenance by tube).
33. Moreover, s 21(3)(b) does not provide
anything like the kind of protection that, at first blush, it
appears to provide. Indeed, this paragraph is likely to serve
to confuse rather than allay fears. It will give a deceptive impression
of protection that is simply not there.
34. Likewise s 31, which stipulates that
it will be an offence for a person to ill-treat or wilfully neglect
the person over whom they have power of attorney or care, will
not of itself necessarily prevent decisions to remove treatment
(or even sustenance by tube). The LPA (or AD) may require such
and yet will still have to be followed. Thus, again, the wider
and more subjective "best interests" criteria in s 4,
which goes beyond clinical best interests and includes decisions
under an LPA or an AD so that they are by definition within
"best interests", may permit withdrawing and withholding
of necessary treatment (or even sustenance by tube) as being treatment
which is outside the patient's "best interests".
35. Thus, again, the scope of s 31 is likely
to cause untenable and misleading reassurancea reassurance
which is not justified.
36. Accordingly, the concept of Lasting
Attorney would better be replaced with a concept of statutory
consultee and/or advocate.
37. Of greater concern still is the power
of the court simply to appoint a "Deputy" to make decisions
to withdraw and withhold sustenance and treatment even though
there is no LPA. Under s.17(1)(d) and (e) of MIB the court-appointed
"Deputy" will have power to make "personal welfare"
"giving or refusing consent
to the carrying out or continuation of a treatment by a person
providing health care for P."
38. Thus all the problems arising under
LPAs are reproduced in the appointment of a "Deputy"
but the "Deputy" will not even be appointed
by the patient himself or herself but rather by a public body.
Moreover, it is highly likely that such an appointee will be some
official such as the chief Social Worker for the area concerned.
Thus the chief Social Worker for the area is likely to be making
decisions about the provision of treatment (or even sustenance
by tube) to the patient and thus perhaps making a decision about
whether that patient should continue to live or not, even though
that social worker is not medically qualified and has no medical
duty of care. That is clearly a matter for considerable concern.
39. The concept of Advance Decisions is
similar to the LPA save that instead of giving to an attorney
the power to order withdrawing or withholding treatment, a legally
binding decision or instrument is made by the patient themselves
in advance of becoming incapacitated.
40. The same problems arise under these
as with LPAs. The patient's autonomy can actually be undermined
by him or her being unable to revoke an AD due to lack of capacity
whilst nevertheless wishing to be treated or receive sustenance.
41. For example, a patient may be "incapacitated"
within the meaning of the MIB but still be able to hear or comprehend
what is happening. A patient in certain types of condition can
still hear and understand but not communicate their wishes to
medical staff or others. The patient's wishes may be overridden
by their own AD which they are unable to revoke due to
being unable to communicate. In such a situation the patient's
autonomy is exploded not enhanced if treatment is refused when
the patient, in fact, desires it but cannot communicate that desire.
42. The obligations of the medical staff
will be the same as with LPAs in the sense that any refusal by
a doctor to withdraw and withhold treatment including, in some
cases, sustenance by tube where the AD stipulates such withdrawal
or withholding, will put the medical staff at risk of civil and
43. The same potential compromise of the
law of homicide is thus risked by the legally binding AD.
44. Moreover, since there is nothing in
the MIB which requires an AD to be in writing it seems that an
oral AD may be sufficient. The scope for abuse in such a situation
is correspondingly augmented to a considerable degree, since evidential
difficulties are likely to arise along with competing assertions
about the existence of an oral AD.
45. A person threatening suicide may be
held to have made an AD if they state they do not want treatment
even if the suicide threat is no more than a cry for help. Some
suicides can appear very calm and rational but nevertheless still
only intend no more than a cry for help. An AD may mean that they
are not treated and simply die or suffer long-term harm.
46. Unlike the provisions for LPAs, there
is not even an attempt to provide some sort of exclusion
by the court on the basis that the AD is not in the patient's
"best interests". It may simply be assumed that
a patient's best interests are served by his AD even if it requires
the doctor to withdraw life-saving treatment, or even sustenance
by tube, provided the purely technical formalities of the AD are
47. This demonstrates clearly that the "best
interests" criteria in s 4 do not rule out the termination
of life-saving treatment, the withdrawing or withholding of necessary
treatment including probably even sustenance by tube, provided
that is what the AD stipulates.
48. Once again, then, doctors will be in
clear danger of being required to act contrary to their
clinical judgment and even to be the immediate agent of the patient's
likely death by withdrawing or withholding treatment and, where
sustenance by tube is withdrawn or withheld, the patients' certain
49. Moreover, by s 25(3), a person who withholds
or withdraws such treatment will not be liable even if there is
no AD, provided he or she reasonably believes that
there was one. That is a very wide "let out" clause
and may result in withdrawal of treatment in disturbing situations,
and even situations of unscrupulous conduct.
50. Thus, once again, the prospect of a
criminal charge of assault arises for a failure to terminate the
patient's life. This once again turns the law of homicide on its
head and compromises a fundamental principle of universal medical
ethics. It cannot be right for a patient's AD to require
a doctor to terminate a patient's life by actively withholding
sustenance however delivered. That is not to "let nature
take its course" but rather it is to cause a patient to die
of thirst. No doctor should be compelled to do such.
51. It has been suggested that there is
no settled law in relation to the definition of capacity. That
is simply wrong as the President of the Family Division, Dame
Elizabeth Butler-Sloss, has made clear in the case of Re: B.
She said that:
"The general law on mental capacity
is, in my judgment, clear and easily to be understood by lawyers
. . . In a series of cases during the 1990s the House of Lords
and the Court of Appeal restated the long-established principles
which govern the law on mental capacity of adults and provided
some guidelines in complex medical situations".
52. It is not necessary, therefore, to re-define
capacity as MIB seeks to do.
53. Moreover, the definition in MIB has
a number of flaws in the context of the remainder of the Bill.
For instance, what constitutes "impairment of or a disturbance
of the functioning of the mind or brain"?
54. It is very important to be clear because
under the remainder of the provisions of MIB there may be decisions
of life and death and any uncertainty about the limits of the
definitions of incapacity may have potentially terminal consequences.
55. For the same reason it is potentially
harmful to include within the definition a merely temporary
impairment or disturbance. A patient may be in a position to regain
capacity and may be unable to make a decision by reason merely
of a temporary unconsciousness. If treatment were to be withdrawn
by order of a Lasting Attorney that might pre-empt a decision
that could be made by the patient upon his or her returning to
capacity. But the patient may be dead before then. That is plainly
a very serious lacuna in the definition of capacity.
56. For the present approach of case law
to capacity see, inter alia, Re: C and Re: T.
57. A case law approach is to be preferred
rather than the blanket statutory approach to capacity that is
suggested in MIB.
58. The attempt by previous draft bills,
Green papers and consultation papers to redraw "best interests"
criteria in a non-clinical manner has been a continuing source
of difficulty and controversy.
59. There is an intrinsic contradiction
contained within such a definition. Medical practitioners are
primarily concerned with determining what is in a patient's clinical
best interests. They are hardly in a position to determine what
is in a patient's non-clinical best interests since that is a
matter for the patient's own autonomy. The patient's autonomy
to determine matters of a non-clinical nature cannot logically
be alienated to a third party, whether by statute or by LPA.
60. Clinical best interests do not necessarily
coincide with patient wishes. Indeed, a patient may want what
is not clinically indicated or refuse what is medically necessary.
The question of patient autonomy in decision-making must not be
confused with medical opinions as to the clinical best interests
of the patient which are a matter of professional judgement. A
doctor is not empowered to advise upon non-clinical best interests
and it cannot be right to require him or her so to do.
61. S 4 of MIB includes a raft of criteria
that are not objective and clinical but are vague and subjective.
It makes no reference to the criteria in F v West Berkshire
HA (Re: F)
which sets out an objective framework for clinical best interests
which is easily understood by doctors, the courts and the public.
62. In matters of life and death it is most
unwise to obfuscate the criteria by which doctors must act.
63. In addition there is a substantial "let
out" clause in s 4(4) in that a carer need only have a "reasonable
belief" that they act in a patient's best interests. Since
the outcome might be the death of the patient that is simply not
sufficient and removes existing protection that incapacitated
patients have in law.
64. There is simply no requirement for a
"general authority" since such already exists at common
law as is clear from, inter alia, the case of Re: F.
65. Moreover, s 7(1)(b) mentions "risk
of significant harm to P" but does not make it clear whether
or not that means death in all circumstances. That is important
since it is sometimes considered that death is not "significant
harm" for certain types of patientsa subjective concept
which has obvious potential for undermining a patient's autonomy
and a doctor's ethical obligations.
1998 AND THE
66. In the light of the above, it is my
view that the MIB may not be fully compliant with the Convention,
particularly Articles 2 and 3. The recent decision in the Diane
Pretty case reinforces my view.
67. In particular I consider that:
(a) MIB appears to be incompatible with
Article 2 of the Convention because it appears to fall foul of
the state's obligation to provide protection of the right to life
which right is a positive obligation on the part of Member states.
(b) MIB does not provide the necessary framework
within the context of Article 6 to protect the right to a fair
hearing in protection of the individual citizen's right to life
under Article 2 and right to be free from inhuman and degrading
treatment under Article 3. Dehydration to death must surely amount
to inhuman treatment if not more.
68. I believe that the concepts of LPA and
AD contain flaws of a fundamental nature that not only fail to
answer and address the problem of autonomy and protection but,
indeed, undermine both.
69. I believe that the better course for
the assurance of proper consultation of relatives, loved ones
and friends in the care and management of patients with mental
incapacity is a system of statutory consultees and/or patient
70. Such a system would meet the desires
of most patients and would, I believe, obviate most of the situations
that have been adumbrated by representative organisations seeking
to protect and enhance the autonomy of patients and the protection
of the vulnerable incapacitated patient.
117 The Bland case: In the leading case of Airedale
NHS Trust v Bland  AC 789, HL, the House of Lords were
called upon to decide what should happen to a young man who had
suffered severe brain damage after being crushed watching a football
match and was rendered into the condition known as PVS, the Permanent
or Persistent Vegetative State (which is not to say that he had
become like a vegetable-a common misnomer). The court decided,
among other things, that a patient in PVS could lawfully have
his or her feeding tubes removed so that the patient then died
of dehydration. The court said that, in the case of PVS patients,
such feeding was medical "treatment" and could be withdrawn. Back
At present doctors are forbidden to participate in judicial executions
because of the "No Harm" principle and because their
vocation is to heal and alleviate pain. The most a doctor can
do is testify that the condemned is certifiably dead. Back
Case no. 95-4-PSA in the First Circuit Court of Okaloosa County
(Probate Division), Circuit Judge Jere Tolton presiding. Back
Case no. 8:03-cv-1860-T-26TTGW in the Tampa Division of the Middle
District Court of Florida, following an order by District Judge
Richard Lazzara on 30 August 2003. Back
The concept of an AD appears to have been first put before Parliament
in 1993 in the Medical Treatment (Advance Directives) Bill [HL
Bill 73, 1993], by a peer on behalf of the Voluntary Euthanasia
Society. This is perhaps unsurprising because it is a legal device
for compelling doctors to act in a manner that will terminate
the life of a patient intentionally, thus forcing the doctor to
act contrary to the fundamental principle of medical ethics to
do no harm (Primum Non Nocere) which has always been one
of the primary objections to euthanasia-voluntary or otherwise.
It is not voluntary for the doctor faced with a legally binding
AD. Thus legally binding ADs could, for the first time, require
a doctor to terminate a life and the doctor's failure so to do
may amount to a criminal offence of assault. This will be so if
"treatment" is to include sustenance by tube. Removal
of feeding tubes from a patient who is not dying will ensure that
the patient dies directly as a result of that removal of
tubes. And that removal will have to be carried out by a doctor
or a nurse. Back
 1 FLR 1090 at 1095. Back
 1 WLR 290, per Thorpe J;  Fam 95. Back
 2 AC 1. Back
R (Pretty) v DPP et al  3 WLR 1598. Back