Report No. 196
The learned Judge then referred to section 151 of the (NZ) Crimes Act, 1961 which deals with 'Duty to provide necessaries of life'. It reads:
"Section 151: Duty to provide the necessaries of life: (1) Everyone who has charge of any other person unable, by reason of detention, age, sickness, insanity or any other cause, to withdraw himself from such charge, and unable to provide himself with the necessaries of life, is (whether such charge is undertaken by him under any contract or is imposed upon him by law or by reason of his unlawful act or otherwise howsoever) under a legal duty to supply that person with the necessaries of life, and is criminally responsible for omitting without lawful excuse to perform such duty if the death of that person is caused, or if his life is endangered of his health permanently injured, by such omission'.
After referring to various aspects relating to moral and legal duties of doctors and the wrong media-description of doctors' decisions, the learned Judge stated that the basic question was whether "the doctor was legally justified in doing what he did. Essentially, this is to ask whether the doctor was under a duty to continue the life-support system or had a 'lawful excuse' for withdrawing it?
If the doctor was not under a legal duty to provide or continue with life-support system, or he had a 'lawful excuse, for discontinuing it, it may then be said that he or she had not legally caused the death of the patient, the Judge said.
As to the duty to provide 'necessaries of life', section 151 applies to patients under medical care. Medical treatment is included in 'necessaries of life'. R vs. Books: (1902)(9) BCR 13. So is medical attention R vs. Morre: (1954) NZLR. But these are actions intended to 'prevent, cure or alleviate disease' that threatened life of health: R vs. Tutton: (1989) 48 CCC (3d) 129.
No precedent is available which said that a 'ventilator' is a 'necessary of life'. But, the question is not capable of absolute answer. It must depend on the facts. A provision for artificial respirator may be regarded as a necessary of life where it is required to 'prevent, cure or alleviate a disease that endangers the health or life of the patient'.
If, however, the patient is 'beyond recovery', a ventilator is not to be treated as a necessary of life. "It is repugnant that a doctor who has in good faith and with complete medical preparatory undertaken treatment which has failed, should be held responsible to continue that treatment on the basis that it is, or continues to be, a necessary of life". Artificial ventilation may, in several cases, enable the patient to live longer and recover. It has therapeutic or medical functions.
Even if it could be said that doctors are under a duty to provide ventilator, they are legally justified in withdrawing it if there was a 'lawful excuse'. The Court of Appeal in R vs. Burney (1958) NZLR 745(CA) (at 753), accepted he following dicta of the Privy Council in Wang Pooh Yun vs. Public Prosecutor: (1955) AC 93 (at 100).
"Their Lordship's doubt if it is possible to define the expression 'lawful excuse' in a comprehensive and satisfactory manner and they do not propose to make an attempt. They agree with the Court of Appeal that it would be undesirable to do so and that each case requires to be examined on its individual facts."
The Judge then held that doctors have a 'lawful excuse' to discontinue ventilation when there is no medical justification to continuing that form of medical assistance or where there is no medical function or purpose and where it serves 'only to defer the death of a patient'. It is not the purpose of medical treatment to merely prolong the life of a person for no benefit. It is not unlawful to discontinue the support 'if the discontinuance accords with good medical practice'. The words 'good medical practice' cannot again be defined absolutely and their meaning depends on the fact situation.
The words refer to a 'bona fide' decision on the part of the attending doctors as to what, in that judgment, is in the 'best interests' of the patient. They also refer to the 'prevailing medical standards, practices, procedures and conditions which command the general approval of the medical profession'. All relevant tests need to be carried out, special list opinions need to be taken, where necessary. Medical body's ethics committees can be consulted. The patient's family or guardian must also be informed.
In the present case, the decision to discontinue has been taken by a number of medical specialists and others. It was endorsed by the medical ethical body. Informed consent of family members was obtained. Thus, there is the assurance of 'good medical practice'.
Such an approach was followed by the Supreme Court of New Jersey in US in 'In the matter of Karen Quilan': (1976) 355 Azd 647. See also Barber vs. Superior Court of State of California (1983) 195 Cal Rep 484.
Question of 'good medical practice' forms the basis of a number of decisions in UK too which enable the doctors to perform sterilisation upon adults unable to consent to such operations because of mental disability. I vs. I: (1988 (1) All ER 613; F vs. Bukhire Health Authority (1989)2 All ER 545. There is also persuasive support for Re J (a minor) 1992 TLR 29 of the UK Court of Appeal.
The realistic approach above mentioned has been accepted by leading jurists. Prof. Ian Kennedy has observed that death is not always necessarily an evil to be prevented and that, as a consequence, a doctor may, in appropriate circumstances, be entitled to embark on conduct which involves ceasing to seek to prevent death and could, as it happens, bring it about (Kennedy, pp 361-367). Again Prof. Williams (p 279) states:
"A doctor must not do anything actively to kill his patient, but he is not bound to fight for the patient's life forever. His duty in this respect is to make reasonable efforts, having regard to the customary practice and expectations, and in particular, having regard to the benefit to the patient to be expected from further exertions. He need not and should not crassly fix his attention upon mere heartbeats'.
Medical science and technology was never intended that it be used to prolong biological life in patients bereft of the prospect of returning to an even limited exercise of human life. Natural death may be deferred but it need not be postponed indefinitely. For example, in case of patients suffering from cancer where there is no hope of recovery, doctors can administer palliative drugs even if they have the effect of hastening death.
Hence under section 151, a doctor acting responsibly and in accordance with good medical practice cannot be made liable for any criminal offence. He must be taken as having had a 'lawful excuse'.
Withdrawal of ventilator is not the cause of death as a matter of law if and when two primary conditions are met: (a) the doctor acted under a duty to provide ventilator as part of the necessaries of life or (b) that doctor has a lawful excuse for declining to do so; both depend on whether he follows good medical practice or guidelines or procedures which have been laid down.