This article examines the particular problems raised by the question of when and in what circumstances it is legitimate to withdraw treatment, by way of artificial nutrition and hydration, from a patient in a persistent vegetative state (“PVS”). In England & Wales, the law has progressed from a judiciary addressing the problems in Airedale N.H.S. Trust v Bland  AC 789 in the House of Lords (“Airedale”), through the Mental Capacity Act 2005. This is compared with the situation in Hong Kong and the application of the Mental Health Ordinance (Cap. 136).
England & Wales
The seminal judgment of the House of Lords in Airedale, put briefly, concerned a patient, Anthony Bland, who was very significantly and seriously injured at the Hillsborough football disaster in April 1989. Mr. Bland’s lungs were crushed and punctured and the supply of oxygen to his brain was interrupted. He sustained catastrophic and irreversible damage to the brain which had left him since April 1989 in a PVS.
In his judgment, Lord Keith summarised Mr. Bland’s situation. He explained that the deprivation of oxygen had destroyed the cerebral cortex of the brain which was a watery mass. This meant that Mr. Bland had no cognitive function or sensory capacity: he could not see, hear, feel or communicate. However, Mr. Bland’s brain stem continued to operate to sustain his heartbeat, breathing and digestion. In medicine and at law, if the brain stem retains its function a person is not clinically dead. Medical opinion was that Mr. Bland would never recover his cognitive function, but through maintenance of artificial feeding and hydration his then current state of existence could continue for years.
The situation of Mr. Bland was a consequence of the immediate medical treatment provided following the catastrophic injuries he suffered at the Hillsborough disaster. In other words, the administration of artificial nutrition and hydration was medical treatment administered to ensure that he was kept alive immediately following the disaster.
When the case came before the House of Lords, Mr. Bland had been in a state of PVS for almost four years. The consensus between both his parents and the medical carers who were responsible for his treatment was that Mr. Bland would not “want to be left like that” and that the continuation of such treatment did not confer any further benefit on him.
In these circumstances, however, the concern of all was that to withdraw treatment would inevitably lead to Mr. Bland’s death. In this situation the medical carers, through the Airedale N.H.S Trust, made application to the courts for a declaration that care could be withdrawn. In view of the fact that death would follow, there was concern that this could expose the carers to criminal implications (ie, there existed mens rea and actus rea and it was feasible that to withdraw treatment leading to certain death could implicate the carers in, at least manslaughter, if not murder).
All three courts, at first instance, the Court of Appeal and the House of Lords, concluded that the object of medical treatment and care is to benefit the patient:
“It is, of course, true that in general it would not be lawful for a medical practitioner who assumed responsibility for the care of an unconscious patient simply to give up treatment in circumstances where continuance of it would confer some benefit on the patient. On the other hand a medical practitioner is under no duty to continue to treat such a patient where a large body of informed and responsible medical opinion is to the effect that no benefit at all would be conferred by continuance. Existence in a vegetative state with no prospect of recovery is by that opinion regarded as not being a benefit, and that, if not unarguably correct, at least forms a proper basis for the decision to discontinue treatment and care.”
The House of Lords agreed that existence in a PVS was of no benefit to Mr. Bland and considered whether it had to apply the principle of sanctity of life regardless.
“The principle is not an absolute one. It does not compel a medical practitioner on pain of criminal sanctions to treat a patient, who will die if he does not, contrary to the express wishes of the patient … It does not compel the temporary keeping alive of patients who are terminally ill where to do so would merely prolong their suffering. On the other hand it forbids the taking of active measures to cut short the life of a terminally ill patient. In my judgment it does no violence to the principle to hold that it is lawful to cease to give medical treatment and care to a PVS patient who has been in that state for over three years, considering that to do so involves invasive manipulation of the patient’s body to which he has not consented and which confers no benefit upon him.”
Accordingly the House of Lords concluded that the treatment (consisting principally of the artificial nutrition and hydration) which would inevitably lead to the death of Mr. Bland could in fact lawfully be withdrawn.
Subsequent to Airedale, the legislature in England & Wales enacted the Mental Capacity Act 2005. This, in effect, codified Airedale and contains three important elements:
- That an act done or decision made for or on behalf of a person who lacks capacity must be done, or made, in that person’s best interests.
- A person lacks capacity if at the material time he is unable to make a decision for himself because of an impairment of or a disturbance in the functioning of the mind or brain.
- Where the determination relates to life sustaining treatment the person making the decision must not, in considering whether the treatment is in the best interests of the patient, be motivated by a desire to bring about the patient’s death.
The purpose of these elements of the Mental Capacity Act 2005 is to enable (or empower) a doctor to administer or withdraw treatment without the need to go to court for a declaration.
We have not identified a case in Hong Kong in which Airedale has been followed. However, the Hospital Authority’s (“HA”) guidelines on life sustaining treatment in the terminally ill issued on 22 September 2015 provide a regime consistent with Airedale. For example, the HA agrees that it is ethically and legally acceptable to withhold or withdraw life sustaining treatment where the treatment is futile. The HA confirms that doctors who initiate certain life sustaining treatment should be allowed to withdraw it when the treatment is futile. Futility in the physiological sense is relatively straightforward to identify, but the HA recognises that in other clinical situations the decision involves balancing the burdens and benefits of the treatment towards the patient and asking the question of whether the treatment, though life sustaining, is really in the best interests of the patient.
The HA’s guidelines also confirm that artificial nutrition and hydration are to be classified as medical treatment and that for a patient in a persistent vegetative state or a state closely resembling it, a declaration from the court should be sought.
The last substantive amendment to the Mental Health Ordinance (Cap. 136) (the “Ordinance”) was in 1997 (post-dating Airedale, but pre-dating the Mental Capacity Act 2005). It would appear that the draftsman of the 1997 amendments did not fully address the problems identified by Airedale and did not, at least as comprehensively, deal with them as did the legislature in England & Wales.
In 2006, the Law Reform Commission of Hong Kong published a report which dealt with two matters, the first relating to decisions in respect of the medical treatment of persons who are in a PVS.
There are two problems with the Ordinance, the first is identified by the Law Reform Commission in its 2006 report: that the Ordinance is unclear as to whether a person who is in a PVS or other state of coma could be regarded as “mentally incapacitated”. More specifically, “mental illness” is not defined in the Ordinance.
The Law Reform Commission also concluded that the common law regime is uncertain, in part because the court only retains an inherent jurisdiction to make a declaration, but has no jurisdiction to approve or disapprove the giving (or withdrawal) of medical treatment to a mentally disordered patient.
The Law Reform Commission then proceeded to recommend that the definition of “mentally incapacitated person” be amended for the purposes of, amongst others, Part IVC so as to include persons “who are unable to communicate [their] views and wishes because [they] are unconscious or for any other reason.”
The second problem with the Ordinance relates to the definition of “treatment” for the purposes of Part IVC of the Ordinance. Treatment covers both “medical treatment” and “dental treatment”. “Medical treatment” is defined to include:
“any medical or surgical procedure, operation or examination carried out by, or under the supervision of, a registered medical practitioner and any care associated therewith.”
Part IVC of the Ordinance contains a regime that is “proposed to empower a doctor to administer treatment without a guardian’s consent in the event of emergency or where it is necessary and in the best interests of the person to receive the treatment” according to Hong Kong Hansard (emphasis on “administer treatment”).
Section 59ZB of the Ordinance provides that Part IVC applies to the treatment of a mentally incapacitated person who has attained the age of 18 years and is incapable of giving consent to the carrying out of the treatment.
Aside from the problem with the definition of mentally incapacitated person identified by the Law Reform Commission, the second problem with Part IVC is that it deals only with the administration of treatment, rather than the withholding or withdrawal of life sustaining treatment such as artificial nutrition and hydration.
So it would appear that even if there were an amendment to the Ordinance and the definition of “mentally incapacitated” person clearly included a person in a PVS, the Ordinance does not address the situation that Airedale dealt with, namely the withdrawal of medical treatment. The HA guidelines are completely correct in requiring the doctor to apply to court. But even then the Ordinance does not assist in a referral to the court. The court would necessarily need to fall back upon the common law itself and Airedale as its guidance.
An Ethical Solution?
Legally in the words of Lord Keith:
“In the eyes of the medical world and of the law a person is not clinically dead so long as the brain stem retains its function.”
An approach might be to reflect upon the situation of a patient in a PVS, who is the subject of administered nutrition and hydration and, after a period of time, consider whether that person could be regarded as no longer clinically alive. An alternative proposition might be to reflect upon whether a person is clinically dead if the brain stem retains its function, but the cerebral cortex does not. Thus the principle of the sanctity of life would not be violated by the withdrawal of treatment leading ultimately to the body ceasing to function.