ABSTRACT
The question that arises as a result of the implementation of the Human Rights Act 1998 in Britain is whether the Bland principle has to be reconsidered, particularly in relation to Art 2 of the Convention. In essence, does the ‘right to life’ under Art 2 negate the Bland principle? According to a recent case, the decision and approach taken in Bland is in accordance with Art 2 of the Human Rights Act. In NHS Trust A v Mrs M; NHS Trust B v Mrs H (2000) (Lawtel), the High Court (per Butler-Sloss P) held that it was not correct to interpret Art 2 of the Convention to mean that a decision to cease treatment in a patient’s best interests was intentional deprivation of life. Although the intention in withdrawing artificial nutrition and hydration in PVS cases was to hasten death, the phrase ‘deprivation of life’ had to import a deliberate act as opposed to an omission by someone acting on behalf of the State resulting in death. Treatment which was no longer in the best interests of a patient would violate that patient’s autonomy even though discontinuance would shorten the patient’s life. Article 2 of the Convention contained a positive obligation on a State to take adequate and appropriate steps to safeguard life, but where a clinical decision had been made to withhold treatment on the ground that it was not in the patient’s best interests, and the clinical decision was in accordance with a respectable body of medical opinion, the State’s positive obligation under Art 2 of the Convention was discharged. In the case itself, one patient had been in PVS for over three years, the other for 10 months. The Court granted a declaration that it was lawful for the hospital trusts to withdraw artificial nutrition and hydration from both patients.
