ZAMBIA OPEN UNIVERSITY

SCHOO OF LAW

2018 SECOND SEMESTER

NAME: ZULU KONZANI JOSEPH

COMPUTER No.: 21810738

PROGRAMME: BACHELOR OF LAW (LLB)

COURSE CODE: LL7

COURSE TITLE: LEGAL PROCESS

CONTACT LECTURER: DR. NGANDU

ACADEMIC YEAR: 1st YEAR

SEMESTER: 2 (TWO)

ASSIGNMENT No.: 1

DUE DATE: 6th SEPTEMBER 2018

POSTAL ADDRESS: ELIM SCHOOL

P.O BOX 22667,

KITWE

Email ADDRESS: jotisa2006@yahoo.com

Mobile phone: 0961705234

Question:
With reference to the case of Airedale NHS v Bland (1993)1 All ER 821, with aid of authorities (Zambian and any
other jurisdiction applicable), discuss on whether judges do make laws in their everyday pronouncements in court.
INTRODUCTION

The case of Airedale NHS Trust V Bland,1 has become a leading case on the lawfulness of
elective withdraw of life support in an adult in a persistent vegetative state (PVS) and that
momentous decision had to be made by the House of Lords in their pronouncement on the case.

Case history

The history of the case is that in 1989 on the 15th of April, at Hillsborough Stadium, a match
between Liverpool Football Club had just begun playing with Nottingham Forest in an F.A semi
final cup. However, the match had to be abandoned because of an accident involving a crowd
surge which resulted in 96 funs being crushed to death with 766 with crush injuries. Anthony
David Bland was one of the injured who suffered brain damage and degenerated in a persistent
vegetative state and was on life supporting treatment. Four months from the day of his injuries,
Dr. Howe, who was the patient’s personal physician, along with Bland’s parents expressed
intention to withdraw all treatment including artificial nutrition and hydration (ANH). The
coroner and the police insisted that such an action would constitute murder. Believing that the
withdraw of treatment was in the best interest of the patient, Bland’s parents alongside Dr. Howe,
the personal physician and supported by the Airedale NHS trust applied to the court for a
determination of the lawfulness of the act of withdrawing this treatment. The court was to decide
whether the doctor could withdraw the life support from Bland without risking prosecution for
murder. This application was supported by the lower court. However, the official lawyer
appointed to represent Bland, due to his state as lacking capacity for decision making, appealed
the judgment, but the court of Appeal upheld the ruling of the lower court and the House of
Lords also unanimously dismissed the subsequent appeal upon review. The case finally came to
an end and in 1993, Bland’s life support treatment was stopped and he was eventually allowed to
die.2

Discussion
1 Airedale NHS Trust V Bland (1993) 1 All ER 821
2 Http//www.bailii.org/uk/cases/KHL/1992/5.html.Accessed on 6th October 2018.
This landmark decision by the House of Lords has made a new precedent, which would now
allow withdraw of life support from PVS patients without the prospect of the doctors facing a
murder charge, but the ruling did not go without criticism on its implications.

John Keown, an English jurist, commenting on the ruling, said the following “Bland rendered
the law morally and intellectually misshapen. It is to be hoped that the courts or the legislature
will soon restore it to its former, coherent, shape, when it could be commended as Hippocratic
rather than criticised as hypocritical”3. Keown, believed the court determination, that Bland’s
life to be worthless, was a dangerous road where the court was actually saying that some lives
are not worth living, as was acknowledged by Lord Mustill who was part of the bench in the
House of Lord hearing the appeal4.

The House of Lord’s statutory interpretation in this case was based on the premise of what was in
the best interest of the patient, which was Bland in this case, where a patient lacks the capacity to
make it known as to how they wish to die and when. In order to appreciate the Lord’s
interpretation, there is a need to look at the legal arguments in the case that was before them. The
arguments forwarded by Bland’s solicitor as the grounds of appeal against the verdict of the
lower court, were that the withdraw of life support treatment from Mr. Bland, would constitute a
positive act of commission intended to course his death. He insisted that this case concerns
matters of death and life. The question was, if it was a criminal offence to deprive Mr. Bland of
life saving treatment, on the evaluation by another of his quality of life. In the determination of
this case, it must be noted that the function of the judges is to interpret and apply the existing
laws of the nation and not to make fresh law, yet the effect of the judge’s decisions does establish
a new rule of the state law, which is called judge made law. In the case of Mr. Bland, the House
of Lords used the statutory interpretation rule of presumptions in order to interpret the statutory
law on murder. The Lords postulated that although it was unlawful for a doctor to do a “positive”
act to bring about the death of a patient, in this case, Mr. Bland (statutory law), the
discontinuation of life support treatment was an omission which is lawful when treatment
considered futile, because the patient is unconscious and there is no prospect of any
improvement and discontinuance is in accordance with the responsible medical opinion and

3 Keown, J. (1997) Resisting Moral and Intellectual Shape to Law after Bland. Law Quarterly Review 113(Jul), 503
4 Ibid, n1
according to the Bolam test5, the doctors were absolved of any negligence. Although it must be
noted this principle was rejected by the supreme court in the case of; Montgomery v
Lanarkshire6. Hence, the new law made by House of Lords by their judicial decision was that
life sustaining therapy can be lawful removed or discontinued in an adult patient lacking decision
making capacity. Lord Goff, started in the following words’, “It would, in my opinion, be a
deplorable state of affairs if no authoritative guidance could be given to the medical profession in
a case such as the present, so that a doctor would be compelled either to act contrary to the
principles of medical ethics established by his professional body or to risk a prosecution for
murder, i do not consider that, in circumstances such as these, a doctor is required to initiate or
continue life prolonging treatment or case in the best interest of his patient”7 Here, judges used
the Golden rule of the statutory interpretation in addressing the concerns addressed by Mr.
Bland’s lawyer, by stressing the non-malicious intent and consideration of the patients best
interest, declaring that if continuing to live was viewed not on the best interest of Mr. Bland, life
support can be lawfully withheld. However, doing it with maliciously is a tort against the patient.
Answering the issue of a positive act of commission which is the cause of death by withholding
the treatment, Lord Browne-Wilkinson, ably answered it by stating the following, “Apart from
the act of removing the nasogastric tube, the mere failure to continue to do what you have
previously done is not, in any ordinary sense, to do anything positive: on the contrary it is by
definition an omission to do what you have previously done. The positive act of removing the
nasogastric tube presents more difficulty. It is undoubtedly a positive act, similar to switching off
a ventilator in the case of a patient whose life is being sustained by artificial ventilation. But in
my judgment in neither case should the act be classified as positive, since to do so would be to
introduce intolerably fine distinction. If instead of removing the nasogastric tube, it was left in
place but no further nutrients were provided for the tube to convey to the patient’s stomach that
would not be an act of commission. Again, as it has been pointed out…..if the switching off of a
ventilator were t be classified as a positive at, exactly the same result can be achieved by
installing a time clock which requires to be reset every 12 hours; the failure to reset the machine
could not be classified as a positive. In my judgment, essentially, what is being done is to omit to

5 Bolam V Friern Hospital Management Committee (1957) 1 WLR582

6 Montgomery V Lanarkshire(2015)UKSC 11
7 Airedale NHS Trust V Bland (1993) 1 All ER 821
feed or to ventilate: the removal of nasogastric tube or the switching off the ventilator are merely
incidents of that omission”. 8

The House of Lords therefore dismissed the appeal by the official solicitor on behalf of Mr.
Anthony Bland that the NHS Trust might lawfully discontinue life saving and medical supportive
treatment designed to keep Anthony Bland alive in his persistent vegetative state, this creating a
new rule by this pronouncement9 . Although the appeal of Bland, was rejected unanimously, the
House of Lords position has been widely debated upon, for a long time, since the court’s
determination and that position supported by one divergent view of one of the Lords on the
bench in the House of Lords when the appeal was dismissed, Lord Mustill who commented as
follows: “it would be in my opinion be too optimistic to suppose that this is the end of the matter,
and that in the future the doctors (or perhaps the judges of the high court) will be able without
difficult to solve all future cases by ascertaining the facts and applying to them the precepts
established in the speeches delivered today the dozens of cases in the American courts have
shown that the subject is too difficult and situations too diverse, for the law to be settled by a
single appeal” 10 A leading Zambia case in which the application of the rule of presumptions
(similar to the Golden rule) was used to make statutory interpretation as in the case which has
been discussed is that of ; AG v Local Government Election Commission (1990-1992)’, in
which the chief justice declared the portion of regulation 10(3) of the Local Government election
Regulations statutory instrument 111 of 1992 that stipulates educational standard as a pre-
requisite for qualification as a candidate, ultra vires and of no legal effect. The appeal was
granted, the basis being that the judges confirmed that AG’s understanding of section 8 of the
Act, truly represents the proper construction of the Act, and the Commission’s interpretation of
the Act as fanciful.

In conclusion the case of Airedale V Bland, whilst creating a way for debates between voluntary
and involuntary euthanasia, has by and large shown the power of judicial decisions in creating a
view principle in law.

8 Ibid
9 Http//www.independent.co.uk/Airedale NHS/accessed on 6 th October 2018
10 Ibid, n1
REFERENCE

1. Airedale NHS trust V Bland (1993) 1 All ER821

2. Http//www.bailii.org/uk/cases/KHL/1992/5.html.Accessed on 6th October 2018.
3. Keown, J. (1997) Resisting Moral and Intellectual Shape to Law after Bland. Law
Quarterly Review113(Jul) 503
4. Ibid, n1
5. Bolam V Friern Hospital Management Committee (1957)1 WLR582
6. Montgomery V Lanarkshire(2015) UKSC11
7. Airedale NHS Trust V Bland (1993) 1 All ER 821
8. Ibid.
9. Http//www.independent.co.uk/Airedale NHS/accessed on 6th October, 2018
10. Ibid, n1