Anthony David ("Tony") Bland (21 September 1970 – 3 March 1993) was a supporter of Liverpool F.C. injured in the Hillsborough disaster. He suffered severe brain damage that left him in a persistent vegetative state as a consequence of which the hospital, with the support of his parents, applied for a court order allowing him to 'die with dignity'. As a result he became the first patient in English legal history to be allowed to die by the courts through the withdrawal of life-prolonging treatment including food and water. The relevant case was Airedale NHS Trust v. Bland (1993) AC 789 HL.
The Hillsborough Disaster
Bland was an avid Liverpool supporter who travelled with two friends to Sheffield Wednesday's Hillsborough football ground for an FA Cup semi-final between Liverpool and Nottingham Forest on 15 April 1989. During the game, a crush behind the Liverpool goal ensued due to the police losing control of the situation outside the ground. A crush had formed at the outer gates, and the Liverpool fans were eventually let in through a side gate by order of Chief Superintendent Duckenfield. However, he neglected to close the tunnel access first and thousands more Liverpool fans were sent down this tunnel into pens 3 and 4 which were already overcrowded due to the failure of police officers and club stewards to direct the fans to the appropriate areas. This resulted in fatal consequences. Although Bland survived the initial crush when still only 18 years old, he had suffered severe injuries and eventually became the disaster's 96th victim on 3 March 1993, aged 22. He never regained consciousness and a legal ruling allowed doctors to withdraw his treatment after all concerned were able to conclude that there was no reasonable possibility that his condition would improve and this was the best possible option.
The injuries and prognosis
Bland suffered serious injuries in the crush at the Leppings Lane terrace. He suffered crushed ribs and two punctured lungs, causing an interruption in the supply of oxygen to his brain. As a result, he sustained catastrophic and irreversible damage to the higher centres of the brain, which had left him in a Persistent Vegetative State (PVS).
He was transferred to the care of Dr J. G. Howe FRCP., a consultant geriatrician (and neurologist) at the Airedale General Hospital near his home in Keighley. Dr Howe had some experience in treating those with PVS. Several attempts were made by Dr Howe and his team, along with Bland's father, sister and mother, to try to elicit some response from him and for some signs of interaction. However, all attempts failed. He showed no sign of being aware of anything that took place around him.
EEG and CT scans revealed that whilst the brain stem remained intact, there was no cortical activity. Indeed, scans subsequently shown to the court showed far more 'space than substance in the relevant part of Anthony Bland's brain'. His body was being kept alive by artificial nutrition, hydration and excellent nursing. But to all intents and purposes the person who was Anthony Bland was gone (the High Court heard that, to his family, he was "dead") and the medical profession treating him stated that there was no reasonable possibility that he would ever emerge from his vegetative state.
The Law in England and Wales prior to Bland
Selective non-treatment of newborn babies
Prior to Bland, English case law on the non-treatment of patients was restricted to newborn babies. There have been several recorded cases of handicapped neonates being 'allowed to die'. A leading case was that of Re B (a minor)  3 All ER 927. That case involved a baby with Down Syndrome complicated by intestinal obstruction which, if left untreated without surgery, would be fatal. The parents felt that it would be in the child's best interests if she were left to die. This was a decision upheld by Lord Justice Dunn at first instance, who lauded the parents' decision as being 'an entirely reasonable one'.
The matter reached the Court of Appeal who overturned the decision. Any such decision had to be made in the best interests of the child and that the prognosis was that the child would have a reasonable quality of life. However, in other cases, for example Re C (a minor) (wardship: medical treatment)  2 All ER 782 and Re J (a minor) (wardship: medical treatment)  3 All ER 930, this test has been used to determine that doctors can choose not to treat or provide life prolonging treatment.
Doctor's potential liability
In R v Arthur (1981) 12 BMLR 1 a baby was born with uncomplicated Down Syndrome and was rejected by the parents. Dr Leonard Arthur, a paediatrician of high repute and impeccable professional integrity, wrote in his notes that the 'Parents do not wish it to survive. Nursing care only.' The baby died 69 hours later. Dr Arthur was charged with murder.
During the trial the defence provided evidence that the child was not physically healthy. As a result the charge was reduced to attempted murder and Dr Arthur was acquitted.
This demonstrates that a doctor who deliberately withdrew life-prolonging treatment under any circumstances, and where the patient subsequently dies, could be charged with murder. There was a subtle exception. If a patient suffered complications but the doctors felt that it would serve no purpose to apply additional treatments, such as antibiotics to fight infection, as might happen in a case of P.V.S. and the patient subsequently dies as a result of the complication then they were not liable under the criminal law. Theoretically, however, they could still find themselves being sued in negligence by the family of the deceased.
In August 1989, four months after Bland was injured, Dr Howe contacted Dr Popper, the [Sheffield] coroner, who was both legally and medically qualified. He informed Dr Popper of the 'plan to withdraw all treatment including artificial nutrition and hydration'. This decision had been taken following full consultation with the family and in accordance with their wishes. Dr Howe reflects:
|“||It is difficult now  to convey my shock on receiving his intimidating reply. Having stated that he [the Coroner] had no jurisdiction over any living person, he advised that I would risk a murder charge should I withdraw treatment. He made it clear that he " ... could not countenance, condone, approve or give consent to any action or inaction which could be, or could be construed as being, designed or intended to shorten or terminate the life of this young man. This particularly applies to the withholding of the necessities of life, such as food and drink." He requested a reply by return indicating that I had understood his opinion, and that I would not withdraw treatment.||”|
The Coroner advised Dr Howe to contact his medical defence society and the Regional Health Authority and copied his letter to the Chief Constable of the West Midlands Police (the investigating force), the local regional Health Authority solicitor and Dr Howe's medical defence society. The following day Dr Howe was visited by the police and told that if he 'withdrew treatment and Tony dies, I would be charged with murder' (for a full, personal account see: Howe 2006).
Following the obtaining of the legal advice, which concurred with that of the coroner, the Airedale National Health Service Trust, with the support of Bland's family and Dr Howe, made an application to court to withdraw all life-prolonging treatment. As Bland was unable to speak for himself and was, for legal purposes, deemed an incompetent, the Official Solicitor was assigned as his guardian ad litem. The Official Solicitor opposed the Trust's application because if the Trust were allowed to pursue the actions proposed by Dr. Howe, it would amount in law to the crime of murder.
Airedale NHS Trust applied to the courts for a declaration to the effect that:
- they might lawfully discontinue all life-sustaining treatment and medical support measures, including ventilation, nutrition and hydration by artificial means
- any subsequent treatment given should be for the sole purpose of enabling him to end his life in dignity and free from pain and suffering
- if death should then occur, its cause should be attributed to the natural and other causes of his present state
- and that none of those concerned should, as a result, be subject to any criminal or civil liability.
This declaration, apart from the latter part of the declaration (which was deemed inappropriate), was granted. The court considered that it was in the patient's best interests for treatment to be withheld and that its discontinuance was in accordance with good medical practice.
Acting on Anthony Bland's behalf, the Official Solicitor appealed this decision.
The Court of Appeal
Such was the importance of the case, and the obvious legal ramifications, it attracted a number of expert witnesses to give evidence. These included Professor Bryan Jennett who, along with Professor Fred Plum, coined the term 'persistent vegetative state' in 1972. Professor Jennett expressed the very strong view that it would be in accordance with good medical practice in the case of Anthony Bland to withdraw the nasogastric artificial feeding. He considered that there was no benefit to continue with the treatment as there was no prospect of recovery of cognitive function.
Other experts in the field of neurology gave evidence. Amongst those was Professor Peter O'Behan who examined Bland on behalf of the Official Solicitor. Like the experts who gave evidence for the Airedale Trust, Prof. O'Behan's evidence was extremely pessimistic. The depth of the hopelessness of Tony Bland's condition is summed up as much in his evidence as in anyone else's where he stated:
|“||I am confident that from my knowledge of other patients, neurophysiology, previous cases from the literature and from animal experimentation that the patient has no awareness nor can he suffer pain or experience pleasure. Further the prospect of improvement can also confidently be answered since based on what we know of the degree of damage to his brain, the comparison of his case with those recorded in the literature (particularly considering the nature of his damage and the duration of his illness) and the type of systems and signs he exhibits, there is no hint or hope or any prospect of improvement.||”|
The House of Lords
The Court of Appeal decision was appealed to the Judicial Committee of the House of Lords. Each of the five judges who heard the case delivered a lengthy opinion on 4 February 1993. Each dismissed the appeal.
Inquest and failed legal challenge
On 21 December 1993, Bradford coroner James Turnbull recorded a verdict of accidental death on Tony Bland.The same verdict was recorded on the other 95 victims (94 who died on the day of the disaster and a 95th who died a few days later) at the main Hillsborough inquest in March 1991, much to the dismay of the bereaved families who had been hoping for a verdict of unlawful killing and for manslaughter charges to be brought against the police who had been patrolling the match.
In the aftermath of Bland's death, pro-life campaigner James Morrow started a legal challenge to have the doctor who withdrew his treatment, charged with murder, but this was rejected by the High Court in April 1994.
Moral and legal issues
The case brought up a number of moral and legal issues. As a result, the number of previous cases referred to is extensive.
This case is another which delegated to the Bolam standard. This was a test introduced by the courts in Bolam v Friern Hospital Management Committee  1 W.L.R 582. The essence of the Bolam standard is such as to remove liability from medical staff if the treatment they have provided to a patient under the particular circumstances would have been followed by a responsible body of medical personnel, exercising due skill and care in the process. Under Bolam, a doctor need only show that he was following an accepted medical practice - even if that practice was only followed by a minority of medical professionals. This was one of the arguments put forward on behalf of Dr. Howe; that it would be intolerable if Dr. Howe was charged with murder for following what he submitted to be generally regarded as good medical practice.
A long-time critic of the Bland case, Dr Jacqueline Laing argues that the dehumanising implications of the judicial decision deserve revisiting given recent Freedom of Information Act requests revealing financial incentives and staggering compliance in rolling out the 2008 NHS End-Of-Life Care strategy. Referring to recent evidence that millions of pounds had been paid to care homes, hospitals and hospices that rolled out the Liverpool Care Pathway, Laing argues it is time to reconsider, amongst other things, the discriminatory 'meaningful life' idea entertained in Bland. She warns that Bland has been dangerously extended by the Mental Capacity Act 2005 so that novel third parties now have power to remove 'treatment' which after Bland may include food and water.
Tony Bland was one of two people injured at Hillsborough to have been diagnosed as being in a persistent vegetative state. The other was 22-year-old Andrew Devine, also from the Liverpool area, who also suffered massive brain damage as a result of being deprived of oxygen due to crush injuries and in the immediate aftermath of the disaster his parents were warned by doctors that he was likely to die within a few months. In 1994, five years after the disaster and one year after the death of Tony Bland, Mr Devine's family claimed to have seen him following a moving object with his eyes. By March 1997, Mr Devine was able to communicate to others using a touch-sensitive buzzer to answer "yes" or "no" to questions asked. By the time of the disaster's 20th anniversary in April 2009, it was reported that he continues to show signs of awareness around him but his condition has barely improved since he was first reported to have emerged from the coma 12 years earlier.
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- Laing, J 2013 'Incentivising Death' Solicitors Journal, 157, 9
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- Neuropathological findings in cases of Persistent Vegetative State, Catholic Quarterly, February 1995
- Persistent Vegetative State: An introduction to duty of care issues, with reference to a UK case