Incapacity : the legacy of Hillsborough and Tony Bland

The jury has returned from its deliberations on the Hillsborough disaster in which 96 Liverpool FC fans died. The 96th victim was Tony Bland.

The injuries Tony sustained at the stadium left him in a permanent vegetative state (PVS) until his death in 1993 when all artificial nutrition and hydration (ANH) was withdrawn.

The withdrawal of ANH could only take place following an extremely important House of Lords judgment that the continuation of ANH was not in Tony’s best interests and it would be lawful to withdraw his feeding and medical care. This was the first case in this country where ANH was withdrawn for a PVS patient. Before the Bland case such conduct was incompatible with the duty of care owed to a patient, but the decision meant there could be no criminal charges brought against the doctors for not providing ANH. In a later case it was confirmed that the Court must be involved in every decision to withdraw ANH from patients in PVS, even if the family and doctors are in agreement about how to proceed.

There have been numerous cases since Bland but this case has had far reaching impact, not least in the Mental Capacity Act 2005 (MCA) which, as regular readers of this blog will know, is an extremely significant piece of legislation with wide ranging consequences. When the Mental Capacity Bill was being discussed in Parliament Tony Bland’s case was a regular feature, highlighting the importance of the decisions made on his behalf and in his best interests.

Anyone who makes decisions in the ‘best interests’ of someone who lacks capacity will encounter the MCA on a regular basis – but the decision in Bland pre-dates the MCA by 14 years.

For more information on Tony Bland’s case and the difficult end of life cases that is has influenced, you may want to read Clarke Willmott’s John Boyle on ‘Crossing the Rubicon on the Right to Die Ferry’. The Hillsborough disaster also had a terrible effect on survivors and families of the victims who witnessed the tragedy at the stadium or live on television. This led to a series of cases relating to nervous shock for secondary victims and you can read Clarke Willmott’s commentary on the development of this area of the law here.

At a momentous time for all victims, families and survivors of the Hillsborough disaster, we remember Tony Bland: the first PVS patient in English legal history to be allowed to die by the courts through the withdrawal of ANH, and we acknowledge his legacy for everyone working in the field of mental incapacity and best interests.

If you or a relative need advice regarding mental capacity and best interest decisions please contact a member of our Mental Capacity and Welfare team.

If you are concerned about the quality of medical treatment given to yourself or a relative, please contact a member of our Medical Negligence team on 0345 209 1255.