authority [20], this duty can arise either through a contract, a special relationship
such as parent and child or doctor and patient) or where a person has voluntarily
undertaken the care of another. But in a famous case ±Donoghuev.Stevenson
1932) ± Lord Atkin held that I owe a duty of care to:
`... persons who are so closely and directly affected by my act that I ought
reasonably to have them in contemplation as being so affected when I am
directing my mind to the acts or omissions which are called in question.'This definition of the duty of care is so much more comprehensive that it is per-
haps fortunate that it is only applicable in civil ± tort ± cases. Either way, it is clear
that health care teams owe a duty of care to their patients and that wanton or
reckless neglect of that duty which results in death can result in a criminal
prosecution for murder or manslaughter. Why, then, did the House of Lords, in
the case ofAiredale NHS Trustv.Bland1992) authorise the non-treatment of the
patient when it was known that it would lead to his death?
Tony Bland was a victim of the Hillsborough football disaster. As a result of his
injuries he was comatose and remained in what is known as a persistent vegetative
state until 1993 when his parents applied through the courts for permission for
artificial nutrition and hydration to be withdrawn. The courts held that artificial
nutrition and hydration was a form of treatment. They also held that, in view of the
extreme unlikelihood of Mr Bland's ever regaining consciousness, the treatment
was of no benefit to him and withdrawing it would take the form of a legal
omission rather than commission, i.e. the medical team had no duty to continue to
treat Mr Bland. The arguments were:
1) A doctor is under no duty to continue to treat a patient where such treatment
confers no benefit on the patient.
2) Being in a persistent vegetative state with no prospect of recovery was
regarded by informed medical opinion as not being a benefit to a patient.
3) The principle of the sanctity of life was not absolute, for example
± where a patient expressly refuses treatment, even though death may well
be a consequence of that refusal,
± where a prisoner on hunger strike refuses food and may not be forcibly
fed,
± where a patient is terminally ill, death is imminent and treatment will only
prolong suffering.
4) Artificial hydration and nutrition required medical intervention for its
application and was widely regarded by the medical profession as medical
treatment.
The governing principle here was not that it was permissible to let a patient die so
long as he/she was not actuallykilled.Itwas rather thatcaringfor a patient in
cases where cure was not possible and recovery was extremely unlikely) did not
require medical interventions which were of no benefit to the patient. But it is also
clear that the treatment in question was not adisbenefitto Bland. If it did him no
good, it also did him no harm. If doctors were under no duty to continue to treat
Bland, they were also under no duty not to. But there was a benefit ± to Bland's
relatives and friends, especially his parents, who were to be spared the grief of
220 Nursing Law and Ethics