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  1. Sheila A M McLean
  1. Professor Sheila AM McLean, Institute of Law and Ethics in Medicine, University of Glasgow, Glasgow G12 8QQ, UK s.a.m.mclean{at}

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In both Scotland and England, the law in respect of the patient in permanent vegetative state was clarified by two recent cases. In England and Wales, the decision of the House of Lords in Airedale NHS Trust v Bland 1 produced the first real clarity in such cases. In this case, the House of Lords agreed that nasogastric feeding and hydration could lawfully be removed from a young man in a permanent vegetative state (PVS). Although this seemed to provide some clarity, critiques of the House of Lords decision have focused to a large extent on the variety of ways in which their Lordships reached their conclusions, perhaps suggesting that in the future a reconsideration might be necessary.2 For some of the judges, the appropriate way of considering the issue was by using the vehicle of consent to treatment. Thus, since Anthony Bland had not consented to the treatment, which was invasive, its continuation when there was no interest being served by so doing, might amount to an assault. This of course begged the question of what interests Mr Bland might have in the situation in which he found himself, and some judges chose to address the question from the perspective of whether or not it would be in his “best interests” to continue treatment.

Lord Goff, for example, said:

“ . . .if the justification for treating a patient who lacks the capacity to consent lies in the fact that the treatment is provided in his best interests, it must follow that the treatment may, and indeed ultimately, should be discontinued where it is no longer in his best interests to provide it.”3

 This approach has been criticised as it seems somewhat difficult to apply in logic. Arguably, by definition, Mr Bland had no interests whatsoever, far …

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