Two women in their 50s with serious brain damage whose relatives want them dead. One judge has said ‘yes’ but the other is still thinking. Why?

Two cases of women in their 50s with serious brain damage went before the courts this week.

Neither patient is dying, but both require 24 hour nursing care and are fed via by a tube. In both cases applications have been made to have hydration and nutrition withdrawn in order than they might die from dehydration and/or starvation.

In the first case the judge has already given the go-ahead to end the patient’s life. But in the second case, that involving a woman in the North of England referred to as ‘M’, which finishes its hearing on Monday, we will have to wait until 23 September for the judgement.

Why the difference? Well, it all relates to a subtle difference in diagnosis and the state of the law in Britain.

The first patient is in ‘permanent vegetative state’ (PVS), which means that she has been judged to have no awareness for over a year. Since the Bland ruling in 1993, it has been possible to apply to the High Court to have nutrition and hydration withdrawn from people with this condition. This woman will be the 44th such patient to die in this way after a court ruling.

The second woman, M, is in a ‘minimally conscious state’ (MCS), the next step up from PVS. In other words, she has some very limited awareness. Thus far, no court has ruled that such a patient can be starved and dehydrated to death. But the woman’s partner and sister nevertheless wish to go down this route.

The legal principles established in the Tony Bland case (pictured), who developed PVS following the Hillsborough disaster, were given statutory force in the Mental Capacity Act 2005, and apply in subsequent PVS cases. And they have not been overturned by the Human Rights Act.

Each case, however, is still required to go to court.

The Nursing Times this week ran the Press Association’s account of the first case referred to above (the PVS case), which I reproduce here:

The High Court has given a health trust permission to lawfully withdraw life-sustaining treatment from a woman in a permanent vegetative state.

Mr Justice Charles, sitting at the Court of Protection in London, ruled that stopping artificial nutrition and hydration would be in the best interests of the 54-year-old mother of four.

Members of her family, who the court heard were ‘entirely supportive’ of the application made by the trust responsible for her care, were present in court for the decision.

Following a ‘collapse’ in 2009, the woman, who cannot be identified for legal reasons, suffered ‘extensive hypoxic brain damage’.

The judge said the application by a NHS trust, which also cannot be named, was for a declaration ‘to render lawful’ the withdrawal of hydration, nutrition and medication for a heart condition.

He said: ‘The consequence of that is that very sadly the patient will die.’

The judge said he was ‘satisfied that appropriate testing and observations have been carried out by the appropriate qualified professionals’ over a significant period of time.

There was ‘convincing evidence from those who are nearest and dearest to her that there is nothing in her approach to life which would indicate that, if she were able to say something about it, she would not completely support what the family are asking me to do’.

He concluded: ‘In my judgment this patient has permanent extensive brain damage and is in a permanent vegetative state. Further treatment would be futile.’ The declaration sought was ‘in her best interests’.

At the time of the Bland case Christian Medical Fellowship expressed serious misgivings about that judgment which we felt crossed a legal rubicon. Three of the reasons for our concern feature in the above account; three concepts embodied in the terms ‘in her best interests’ and ‘further treatment would be futile’.

These terms embrace three important legal precedents established by Bland.

The first precedent is that nutrition and hydration constitute treatment. Our argument was that they constitute rather basic human needs that all of us share. Treatments are aimed at reducing or reversing the effects of an illness. But hydration and nutrition, like air, are simply essential requirements for life. Withdrawing all nutrition and hydration from any human being will result in death. But withdrawing a treatment will only result in the deaths of those who rely on that treatment to stay alive.

The second precedent is that having one’s life actively ended, when one is not actually dying, can be in a person’s best interests. But that is a philosophical position based on a particular world view. We can only make a judgment that death is in a person’s best interests by starting with a set of presuppositions about the nature of life, suffering, morality and death that lead to that conclusion. Our argument was that we have no right to decide what another person’s best interests are. Or alternatively that if we are in any doubt, then the benefit of the doubt should be in the direction of preserving life. Deciding for another person that it is in their best interests to have their life ended is a very dangerous precedent indeed. Especially if that person is unable to express an opinion on the matter.

The third precedent is that providing basic care to a person with PVS would be futile. But nutrition and hydration has a real and measurable effect in that it stops a patient dying from dehydration and/or starvation. So how is it futile? It can only be so if a patient’s continued existence itself is judged to be futile. Our argument was that whilst doctors are justified in deciding whether or not a treatment was futile – in that it had no measurable effect or imposed burdens disproportionate to any benefit – they have no right to make judgments about whether a patient’s life is futile.

The assumptions that nutrition and hydration constitute treatment rater than care, that being starved and dehydrated to death can be in a person’s best interests and that the lives of some people are futile are all false assumptions. They should never have been given legal force. But sadly they have.

The Bland judgment was seriously flawed. Bland and the 43 others who have died after him, including the case this week, should not have died in this way. They should have been given basic care, including nutrition and hydration, until they died naturally.

But if the judge presiding over the case of M, the second woman (with MCS), were to decide on 23 September to ‘pull the plug’ an even greater wrong would be done which would place the lives of many disabled people in danger by the legal precedents it created. What we should be doing instead is trying to overturn the Bland decision and amend the Mental Capacity Act.

Whilst the Mental Capacity Act was being drawn up in 2004-5 the Voluntary Euthanasia Society (renamed ‘Dignity in Dying’ in January 2006) took a huge interest and made a significant contribution to its wording. The concepts of ‘futile life’, ‘best interests’ being served by having one’s life ended and nutrition and hydration constituting treatment were all ideas they supported.

They wanted to pave the way to enable people whose lives were judged to be ‘futile’ to be starved and dehydrated to death. Why?

Well we have to go back a little in history to look at the agenda the international ‘pro-euthanasia movement have been pursuing for decades.

At the Fifth Biennial Conference of the World Federation of Right to Die Societies held in Nice, France on 20-23 September 1984, Helga Kuhse, PhD, lecturer in philosophy at Monash University and Research Fellow at the Centre for Human Bio-Ethics in Melbourne, Australia, made the following statement:

‘If we can get people to accept the removal of all treatment and care – especially the removal of food and fluids – they will see what a painful way this is to die, and then, in the patient’s best interests, they will accept the lethal injection.’

There’s that term ‘best interests’ again.

Kuhse is not proposing a policy of coercive ‘voluntary euthanasia’. Her view is that a public policy, which allows the withholding of food and fluids, is a cruel one and not in the patient’s best interest. She believes the public recognition that such a policy grossly disregards the interests of patients must eventually lead to the acceptance of active euthanasia.

You don’t often hear this worded as bluntly these days by advocates of legalising euthanasia. They also deny supporting euthanasia for people who are not mentally competent. But the agenda is still there. Allowing death by dehydration and starvation is a step aimed at softening up the public for the introduction eventually of involuntary euthanasia – in their ‘best interests’.