The recent decision of the Court of Appeal in Frenchay Healthcare NHS Trust v S [1994] 2 All ER 403 represents the first application for a declaration under the principles of Airedale NHS Trust v Bland [1993] 1 All ER 821 to come before the courts since that decision.The approach of the Court of Appeal to the difficult question of withdrawal of treatment from coma victims is considerably more casual than that shown by the House of Lor ds in Bland.

It will alarm all those who considered Bland to represent a dangerous departure from the principle of the sanctity of life, and everyone who asked of the decision 'where will it all end?'Bland was a landmark decision on the issue of passive involuntary euthanasia.

Anthony Bland, a victim of the Hillsborough tragedy, was in a deep coma categorised as a persistent vegetative state (PVS).

He was not technically brain dead, but he had no consciousness and no prospect of recovery.Their Lordships decided that in those circumstances continued treatment of Anthony Bland - including feeding and hydration by nasogastric tube - was unlawful because treatment could no longer be said to be in Anthony Bland's best interests.

As an adult, treatment of Anthony Bland in the absence of his consent was only lawful under the doctrine of necessity.

The treatment could only be said to be necessary if it could be shown that it was in his best interests for it to be continued.As it was a matter of 'complete indifference' to Anthony Bland whether he lived or died, consciousness having departed for ever, it could not be shown that life preserving treatment was in his best interests; he simply had no interests at all.

On that basis, the House of Lords granted a declaration that it would be lawful to cease treatment of Anthony Bland, even though the result would be that he would inevitably die.It is important to note a number of features relating to the decision in Bland.

First, that Anthony Bland was represented by the official solicitor as his guardian ad litem, who had every opportunity to examine and challenge the case put in support of the application and, in particular, to obtain a thorough investigation of the PVS diagnosis by independent medical experts.Secondly, that the 'undisputed consensus of eminent medical opinion' was that, while Anthony Bland retained his reflexive bodily functions such as heartbeat and breathing, he had lost forever all possibility of cognitive function and sensory capacity.

His cerebral cortex had degenerated into a watery mass and there was no prospect whatever that he would ever recover.

Thirdly, that the House of Lords stressed the desirability of all such cases being scrutinised by the Family Division until such time as a sufficient body of experience and practice had been built up.In contrast with the painstaking care by which the decision in Bland was reached, the application in Frenchay was heard and disposed of at very short notice.

Notice of the application was given to the court and the official solicitor on a Wednesday, the application was heard and granted in Bristol High Court the next day and the appeal was heard and dismissed the day after.

There was no opportunity for the official solicitor to investigate the case or to obtain independent expert medical opinion on the diagnosis.As a consequence there was no opportunity to test the diagnosis of PVS and/or to consider whether the case of the patient, S, was as severe as that of Anthony Bland.

Importantly, the House of Lords made it clear that their decision was strictly limited to the facts of the case and in particular that there was an important difference between a patient with no consciousness and therefore no interests, and a patient with limited consciousness whose best interests would have to be assessed.The medical evidence presented in support of the application was unsatisfactory in a number of ways.

The evidence of the 'independent' medical experts was obtained on behalf of the hospital from doctors who had had previous invo lvement in the patient's treatment.

None of them had time to do more than write up their previous notes.

What is more, two of the three experts raised matters in their reports which suggested that the patient, S, might be possessed of some, very limited, consciousness; one said that S appeared to suffer pain and the other had previously suggested steps to make the patient more 'comfortable'.The Master of the Rolls, Sir Thomas Bingham, giving the leading judgment, accepted that the medical evidence was not as emphatic or as unanimous as that in Bland.

However, he went on to say that he was satisfied, particularly on the evidence of 'the doctors who know S best', that the diagnosis of PVS was correct, that there was no prospect of recovery and that S had no cognitive function worth the name.By allowing the hearing to proceed at such short notice, he denied himself the opportunity of hearing properly prepared, fully independent expert medical evidence that might have contradicted the diagnosis.

This is the very safeguard required by the House of Lords and the British Medical Association.

Furthermore, he ignored the crucial distinction between no cognitive function and 'none worth the name'.

If S was in the latter category, if there was any possibility that he possessed the 'glimmerings of awareness', then his case required more careful scrutiny than that of Anthony Bland, not less.

First, to be sure of the diagnosis; secondly, because the case then falls outside the authority of Bland; and, thirdly, because where there is consciousness the patient may have interests and the question of whether continued treatment is in the patient's best interests becomes much more difficult.What, then, justified these departures from the cautious approach of the House of Lords? The answer given is that the case was an 'acute emergency'.

This is hard to accept.

Six months before the hearing it had ceased to be possible to feed and hydrate S by nasogastric tube and so a gastrostomy tube was surgically inserted directly through the stomach wall.

The 'acute emergency' was that the tube had come out and would require further surgery to replace.

If it was not replaced, S would die within a limited period.

It should be noted that the tube had had to be replaced before.The declaration was sought to obviate the need to replace the tube again, the treating doctor and his team being of the opinion that it would not be in S's best interests to do so.

It is not necessary to refute the treating doctor to say that the court should not have granted the declaration.

A declaration should only be made where the court is satisfied that the continuation of treatment is not in the patient's best interests.

In this case, because of the 'emergency', the court was not in a position to form any valid opinion.It is too soon for these matters to be decided by individual doctors without judicial scrutiny and the opportunity for public debate, yet this is what the Master of the Rolls invites.

With regard to S, an application on full notice was already pending; the tube should have been replaced and treatment continued until that hearing.The treating doctor cannot have it both ways, effectively asking the court to rubber-stamp his decision without hearing independent evidence and a properly prepared defence to the application.

The Master of the Rolls goes further and recognises that, in some situations, it will be impracticable to apply to court at all.

This cannot be right, for once the patient is dead who can refute the doctor?The flawed medical evidence in Frenchay s hows the inherent danger in this approach.

We are all aware of the shortfall of resources within the NHS.

For the foreseeable future, the court should encourage doctors to bring every case to court for a full hearing and the expectation that treatment should be continued until that time.