DEHYDRATION AND HUMAN RIGHTS

2001 ◽  
Vol 60 (1) ◽  
pp. 1-58
Author(s):  
John Keown
Keyword(s):  
Human Rights ◽  
Medical Treatment ◽  
Vegetative State ◽  
Persistent Vegetative State ◽  
House Of Lords ◽  
The Law ◽  
Controversial Aspect

IN NHS Trust v. Bland [1993] A.C. 789 the House of Lords held it lawful for a doctor to withdraw tube-delivered food and fluids from his patient in persistent vegetative state (pvs) even though this would cause death by dehydration. The most controversial aspect of the case was the further ruling by three of their Lordships that it was lawful even though the doctor’s purpose was not merely to withdraw what he regarded as a futile “medical treatment” but was precisely to kill the patient. As one of their Lordships, Lord Mustill, rightly recognised (even though he thought withdrawal ethically justifiable), this ruling left the law “morally and intellectually misshapen”, prohibiting intentional killing by an act but permitting intentional killing by omission.

Beyond Bland: a critique of the BMA guidance on withholding and withdrawing medical treatment

Legal Studies ◽  
2000 ◽  
Vol 20 (1) ◽  
pp. 66-84 ◽  
Author(s):  
John Keown
Keyword(s):  
Medical Treatment ◽  
Assisted Suicide ◽  
Vegetative State ◽  
Ethical Reasoning ◽  
Persistent Vegetative State ◽  
Tube Feeding ◽  
Severe Dementia ◽  
Basic Care ◽  
House Of Lords ◽  
Legal Precedent

In Bland the House of Lords held it lawful to withdraw tube-feeding from a patient in a ‘persistent vegetative state’ (pvs), even with intent to kill him. The British Medical Association (BMA) recently published guidance on the withholding and withdrawal of ‘medical treatment’, so defined as to include food and water delivered by tube. The guidance endorses the withholding/withdrawal of tube-delivered food and water not only from patients in pvs but also from other non-terminally ill patients, such as those with severe dementia or serious stroke. The underlying justification appears (as in Bland) to be that such lives lack worth. This article offers three major criticisms of the guidance. First, its argument that tube-feeding is medical treatment rather than basic care is weak. Secondly, its reasons for not treating or tube-feeding undermine the BMA's longstanding opposition to active euthanasia and active assisted suicide. Thirdly, it relies heavily on legal precedent at the expense of ethical reasoning.

would not allow him to do so till Saturday 31 December. He did not tell the receptionist at the surgery of the full circumstances of the illness and the doctor did not come. In the afternoon of the same day S phoned again. A locum called, but the deceased died of puerperal fever before he arrived. Medical evidence was that she could have been saved had a doctor been called before that Saturday. S was charged with (1) manslaughter of his wife on 31 December; (2) concealment of birth on 28 December. On the second count his defence was that they did not intend to conceal the birth permanently but would have told the police when they felt up to it. The judge directed the jury that this amounted to a defence to the charge. The judge in his summing-up directed that it had to be proved that in reckless disregard of his duty to care for the deceased’s health, S failed to get medical attention, and that as a direct result of that failure she died. ‘Reckless disregard’ meant that, fully appreciating that she was so ill that there was a real risk to her health if she did not get help, S did not do so, either because he was indifferent, or because he deliberately ran a wholly unjustified and unreasonable risk. It was accepted that he was not indifferent – the evidence was that they were a devoted couple and that he stayed with her all the time when she was ill. It was also accepted that she did not want a doctor called, and the jury had to balance the weight that it was right to give to this wish against her capacity to make rational decisions. In addition it had been proved that the ‘reckless disregard’ led to the death and that had S acted differently on 31 December, his wife’s life would have been saved. The jury convicted on the second count but could not agree on the charge of manslaughter and were discharged from giving a verdict. Airedale National Health Service Trust v Bland [1993] 1 All ER 82 (HL) Anthony Bland was injured in the Hillsborough Stadium disaster. He suffered irreversible brain damage and was diagnosed as being in a persistent vegetative state (PVS). Expert medical evidence was to the effect that there was no hope of recovery. The Airedale NHS Trust, with the support of Bland’s parents, sought a declaration that the doctors treating Bland might lawfully discontinue all life-sustaining treatment and medical treatment except that required to enable Bland to die without unnecessary distress. The Official Solicitor appealed to the House of Lords against the granting of the declaration on the basis that the withdrawal of life support treatment would amount to murder.

1996 ◽  
pp. 109-112
Keyword(s):  
Life Support ◽  
Vegetative State ◽  
Persistent Vegetative State ◽  
Direct Result ◽  
Medical Attention ◽  
Medical Evidence ◽  
House Of Lords ◽  
National Health Service Trust ◽  
Life Sustaining Treatment ◽  
Do So

scholarly journals Smith v Chief Constable of Sussex Police; [2008] UKHL; 50

2012 ◽  
Vol 21 (1) ◽  
pp. 141-152
Author(s):  
Carol Brennan
Keyword(s):  
Human Rights ◽  
Common Law ◽  
Law Reform ◽  
House Of Lords ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
The Common ◽  
The Law ◽  
The Relationship ◽  
Exclusive Focus

WHO HAS FIRST CLAIM ON “THE LOYALTY OF THE LAW”?Smith v Chief Constable of the Sussex Police (hereafter Smith) was heard by the House of Lords at the same time as Chief Constable of the Hertfordshire Police v Van Colle and another because they had two uniting factors. First, they both concerned the recurring question of the ambit of police liability in the situation described by Lord Bingham thus: “…if the police are alerted to a threat that D may kill or inflict violence on V, and the police take no action to prevent that occurrence, and D does kill or inflict violence on V, may V or his relatives obtain civil redress against the police, and if so, how and in what circumstances?”2  Secondly, considering the cases together highlighted the wider issue of the relationship between decisions under the Human Rights Act 1998 (hereafter the HRA) and the development of the common law. The Law Lords embarked on a more extensive examination of these issues in Smith and thus that case will be the exclusive focus of this note.  In addition, the study of Smith raises questions regarding proposals for law reform as well as about judicial perceptions of policy priorities. 

scholarly journals Decision-making competence in adults: a philosopher's viewpoint

2001 ◽  
Vol 7 (5) ◽  
pp. 381-387 ◽  
Author(s):  
Donna Dickenson
Keyword(s):  
Mental Health ◽  
Decision Making ◽  
Mental Disorder ◽  
Vegetative State ◽  
Persistent Vegetative State ◽  
Legal Implications ◽  
Consent To Treatment ◽  
The Law ◽  
Informal Carers ◽  
The Way

What does it mean to respect autonomy and encourage meaningful consent to treatment in the case of patients who have dementia or are otherwise incompetent? This question has been thrown into sharp relief by the Law Lords' decision in R.v Bournewood Community and Mental Health NHS Trust, ex parte L (1998). The effect of the Law Lords' ruling in the Bournewood judgment is to reinforce problematic and serious anomalies in the way we view patients whose competence is in doubt because of their mental disorder. Others, such as relatives and informal carers, are frequently allowed to decide on behalf of adults whose competence is doubtful in a way that English law generally abhors, even for totally incompetent patients in a persistent vegetative state. This raises profound questions about autonomy. And incompetent adults' consent to treatment is not required to be of the same quality as it is for the rest of us: mere absence of resistance will do. This paper will explore the philosophical, jurisprudential and legal implications of this difference. Throughout I will be more concerned with the ramifications of a finding of incapacity than with how such a finding is made (for the latter, see such classic texts as Applebaum & Roth (1982), Grisso & Applebaum (1998) and Bellhouse et al (2001)).

Helga Wanglie Revisited: Medical Futility and the Limits of Autonomy

1993 ◽  
Vol 2 (2) ◽  
pp. 161-170 ◽  
Author(s):  
David H. Johnson
Keyword(s):  
Medical Treatment ◽  
Vegetative State ◽  
Persistent Vegetative State ◽  
Medical Futility ◽  
Best Interests ◽  
Public Controversy ◽  
The World ◽  
Sentient Beings ◽  
To Receive

There is little to indicate from, her circumstances that events would propel Helga Wanglie, an 86-year-old Minneapolis woman, into the center of public controversy. We know little of her life prior to the events that removed her from the world of conscious, sentient beings. By the time of her death on 4 July 1991, Mrs. Wanglie had become the focus of a nationwide public and professional debate on the rights of a patient in a persistent vegetative state (PVS) to receive aggressive medical treatment when such treatment is felt by the patient's doctors not to be in the patient's best interests.

Osman and police immunity in the English law of torts

Legal Studies ◽  
2000 ◽  
Vol 20 (3) ◽  
pp. 372-392 ◽  
Author(s):  
Paula Giliker
Keyword(s):  
Public Policy ◽  
Human Rights ◽  
United Kingdom ◽  
European Convention ◽  
European Court ◽  
House Of Lords ◽  
English Law ◽  
The Law

This article examines and questions the nature of police immunity from claims for negligence in the investigation and suppression of crime, as stated by the House of Lords in Hill v Chief Constable of West Yorkshire. This issue has been discussed before the European Court of Human Rights in Osman v United Kingdom, where the court held that a blanket application of the immunity was contrary to art 6 of the European Convention on Human Rights. This article will argue that this decision does not overturn the basic public policy principles for the immunity stated in Hill and that further examination of this area of law is required. It is submitted that if the law is considered in terms of proximity rather than in terms of public policy immunity, a clearer understanding of the principles underlying this area of law can be reached together with the desirable goal of removing the term ‘immunity’ from this area of law.

Medical Treatment of Dementia Patients at the End of Life: Can the Law Accommodate the Personal Identity and Welfare Problems?

2006 ◽  
Vol 13 (3) ◽  
pp. 219-234 ◽  
Author(s):  
Penney Lewis
Keyword(s):  
Decision Making ◽  
Human Rights ◽  
Medical Treatment ◽  
Personal Identity ◽  
European Convention ◽  
Dementia Patients ◽  
Legal Position ◽  
The Law ◽  
Advance Decisions ◽  
Do So

AbstractThis article considers whether two significant philosophical objections to autonomy-based legal approaches to decision-making for incompetent individuals could be accommodated by the law. These philosophical objections are known as the personal identity and welfare problems. The article first sets out the autonomy-based approaches and their objections. Next, the present legal position is briefly canvassed in a comparative vein. Finally, the article suggests how the personal identity and welfare problems might be accommodated were legislators minded to do so, by proposing specific statutory amendments to the recent English legislation on advance decisions and evaluating their viability, particularly in light of the European Convention on Human Rights.

Vincent Lambert, Dignity in Dying and the European Court: A Critical Evaluation and the Global Reflections

2016 ◽  
Vol 23 (2) ◽  
pp. 141-157 ◽  
Author(s):  
R.R. Kishore
Keyword(s):  
Human Rights ◽  
Vegetative State ◽  
Persistent Vegetative State ◽  
Critical Evaluation ◽  
European Convention ◽  
Artificial Nutrition ◽  
Right To Die ◽  
Artificial Nutrition And Hydration ◽  
European Court ◽  
The Face

In this article I analyse the verdict of the European Court of Human Rights in the Case of Lambert and Others v. France, delivered on 5 June 2015, affirming the Conseil d’État’s decision holding that the withdrawal of artificial nutrition and hydration from Vincent Lambert, a French national lying in tetraplegia and persistent vegetative state, was consistent with French domestic law and the European Convention for the Protection of Human Rights and Fundamental Freedoms. In order to make a comparative evaluation I give an account of judicial decisions across the world and find that the European Court’s decision is an affirmative pronouncement, in the prevailing milieu of judicial heterogeneity, as it recognizes a person’s right to die with dignity in the face of conflicting claims and arguments, by giving supremacy to a person’s autonomy and right of self-determination over the deep-rooted religious beliefs and undue paternalistic postures. I conclude that right to die with dignity is a profound area where judge-made law is not the answer. The situation calls for greater consensus and uniformity by evolving suitable legislative strategies.

scholarly journals Chikwamba v Secretary of State for the Home Department [2008] UKHL 40

2012 ◽  
Vol 21 (1) ◽  
pp. 153-171
Author(s):  
Charlotte Walsh
Keyword(s):  
Human Rights ◽  
Asylum Seekers ◽  
Safety Net ◽  
European Convention ◽  
Secretary Of State ◽  
House Of Lords ◽  
Home Department ◽  
The Law ◽  
Appeals Process ◽  
System 1

UNHAPPY FAMILIES AND USE OF ARTICLE 8 FOR FAILED ASYLUM SEEKERSImmigration minister Phil Woolas has attacked lawyers and charities that work on behalf of asylum seekers for undermining the law and “playing the system” by exploiting the appeals system.1 However, the case of Chikwamba v Secretary of State for the Home Department,2 handed down by the House of Lords on June 25th 2008, confirms the need for an effective appeals process, without which there would be no safety net for thousands of asylum seekers. The case concerns the application of article 8 of the European Convention of Human Rights (ECHR)3 and the government’s policy regarding failed asylum seekers.

Safe in their hands? Britain’s Law Lords and human rights

Legal Studies ◽  
2006 ◽  
Vol 26 (3) ◽  
pp. 329-346 ◽  
Author(s):  
Brice Dickson
Keyword(s):  
Human Rights ◽  
International Law ◽  
European Convention ◽  
Memorial Lecture ◽  
The Past ◽  
House Of Lords ◽  
Protection Of Human Rights ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
The Law

This paper, which is the revised text of the first Stephen Livingstone Memorial Lecture delivered in February 2006, surveys the human rights jurisprudence of the House of Lords over the past 10 years. It considers not just how the Law Lords have responded to the Human Rights Act 1998 but also how they have developed the law on equality, asylum and immigration. In assessing whether human rights are ‘safe’ in the hands of the Law Lords, it looks, first, at how willing the Law Lords have been to engage with human rights arguments, concluding that they have relished such discourse. The piece then examines how rigorously the Lords have protected rights guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950. The conclusion reached is that the Law Lords have been doing a good job on that front. What is preventing them from adopting an even more rights-based approach to their work in general is the UK’s stubborn adherence to the ‘dualist’ theory of international law. The author agrees with Lord Steyn that the time has come to reconsider that position.

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