LIM Seminar 5- Legal Positivism and Natural Law (12/12/17)
Task 1-
Airedale NHS Trust v Bland case summary
Citation- Airedale NHS Trust v Bland [1993] AC 789
Parties- Airedale NHS Trust (respondent), Bland (appellant)
Nature of case- appeal, medical, maintenance of life, injury, life-sustaining treatment, sanctity of life,
informed consent, allowing to die, withholding treatment, civil, courts inherent juristiction
Status of court- House of Lords, 5 Judges
Facts- Bland injured in the Hillsborough disaster when he was 17. Since then he has been in a
persistent vegetative state with no sign of this ending. Able to breathe alone but can’t eat himself and
required many antibiotics. His parents took the decision that he wouldn’t want this so have asked for
the feeding tube to be removed so that he can die with dignity. This was allowed by lower courts but
his guardian has appealed it.
Look at st georges hospital trust and abortion against wishes
Legal issue(s)- Can life support ever be withdrawn from a patient unable to give informed consent?
Lord brown Wilkinson- 877
Outcome- Dismissed
Reasoning- There was no question that Bland was still alive and that generally the sanctity of life
must give to the principle of self-determination. Effect must be given to the wishes of the patient even
if doctors do not consider it in their (the patients) best interest. (re F) This ‘best interest’ doesn’t
however translate into an absolute duty to prolong life especially when the procedures used are
invasive and possibly dangerous. There also has to be a distinction between discontinuing life-
prolonging processes and actively assisting death (euthanasia). The most important question is
whether it is in Bland’s best interest for the continuation of treatment as this is the duty of the doctor,
to treat in the best interest of the patient.
Lord Goff says a distinction must be made between cases where the life-prolonging treatment isn’t in
the patient’s best interest because of the nature of the treatment and cases when it isn’t in the best
interest because there is no viable possibility of improvement. Treatment isn’t appropriate when its
futile because of no possibility of improvement. This means doctors have no duty to administer the
treatment because it isn’t in the best interest of the patient. He determines the distinction between this
and an “act” leading to death. This particular withdrawal of treatment would lead to a slow death from
starvation but because the artificial feeding is a medical treatment (like that of an iron lung) so the
decision to continue use is a question of best interest of the patient. Omission
Lord Mustill agrees with Goff but focuses on the ethic justification of withdrawal. There was never a
duty on the doctors to administer the treatment so they can’t be held criminally liable for
discontinuation. Deductive process. Look at 897-898 (5 points)
Little law covering this are- parliament refuses to legislate. Left with nothing, decide case-by-case.
Task 2-
Legal Positivism (Hart); the process in which law came into being, sources determine validity
Doesn’t engage with morality but doesn’t necessarily say that unjust laws should be followed
1. Historically speaking, lave legal and moral developments actually affected
each other?
2. Analytically speaking, is an account of morality necessary for an account of
law?
3. Is law open to moral criticism?
4. Is it morally permissible to enforce morals through law?
Task 1-
Airedale NHS Trust v Bland case summary
Citation- Airedale NHS Trust v Bland [1993] AC 789
Parties- Airedale NHS Trust (respondent), Bland (appellant)
Nature of case- appeal, medical, maintenance of life, injury, life-sustaining treatment, sanctity of life,
informed consent, allowing to die, withholding treatment, civil, courts inherent juristiction
Status of court- House of Lords, 5 Judges
Facts- Bland injured in the Hillsborough disaster when he was 17. Since then he has been in a
persistent vegetative state with no sign of this ending. Able to breathe alone but can’t eat himself and
required many antibiotics. His parents took the decision that he wouldn’t want this so have asked for
the feeding tube to be removed so that he can die with dignity. This was allowed by lower courts but
his guardian has appealed it.
Look at st georges hospital trust and abortion against wishes
Legal issue(s)- Can life support ever be withdrawn from a patient unable to give informed consent?
Lord brown Wilkinson- 877
Outcome- Dismissed
Reasoning- There was no question that Bland was still alive and that generally the sanctity of life
must give to the principle of self-determination. Effect must be given to the wishes of the patient even
if doctors do not consider it in their (the patients) best interest. (re F) This ‘best interest’ doesn’t
however translate into an absolute duty to prolong life especially when the procedures used are
invasive and possibly dangerous. There also has to be a distinction between discontinuing life-
prolonging processes and actively assisting death (euthanasia). The most important question is
whether it is in Bland’s best interest for the continuation of treatment as this is the duty of the doctor,
to treat in the best interest of the patient.
Lord Goff says a distinction must be made between cases where the life-prolonging treatment isn’t in
the patient’s best interest because of the nature of the treatment and cases when it isn’t in the best
interest because there is no viable possibility of improvement. Treatment isn’t appropriate when its
futile because of no possibility of improvement. This means doctors have no duty to administer the
treatment because it isn’t in the best interest of the patient. He determines the distinction between this
and an “act” leading to death. This particular withdrawal of treatment would lead to a slow death from
starvation but because the artificial feeding is a medical treatment (like that of an iron lung) so the
decision to continue use is a question of best interest of the patient. Omission
Lord Mustill agrees with Goff but focuses on the ethic justification of withdrawal. There was never a
duty on the doctors to administer the treatment so they can’t be held criminally liable for
discontinuation. Deductive process. Look at 897-898 (5 points)
Little law covering this are- parliament refuses to legislate. Left with nothing, decide case-by-case.
Task 2-
Legal Positivism (Hart); the process in which law came into being, sources determine validity
Doesn’t engage with morality but doesn’t necessarily say that unjust laws should be followed
1. Historically speaking, lave legal and moral developments actually affected
each other?
2. Analytically speaking, is an account of morality necessary for an account of
law?
3. Is law open to moral criticism?
4. Is it morally permissible to enforce morals through law?
