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Report No. 196

Hamilton CJ of the Ireland Supreme Court stated in Ward of Court, Re a: 1995 (ILRM) 401, that

"As the process of dying is part and an ultimate consequence of life, the right to life necessarily implies the right to have nature taking course and to die a natural death."

Thus, refusing treatment and allowing the body to die a natural death is also not an offence. In the same case, O'Flaherty J after referring to 'right to life' and Article 2 and 6 of the European Convention and Article 6 of the ICCPR stated:

'This case is not about terminating a life but only to allow nature to take its course which would have happened even a short number of years ago and still in places where medical technology has not advanced so much as in this country'.

He stated that in 'irreversible incompetents' right to self determination also outweighs the State's interest in preserving life, preventing suicide, protecting third party defendants of the dying patient, and preserving the ethical integrity of the medical profession.

In Scotland, in Law Hospital NHS Trust vs. Lord Advocate (Scotland): 1996 SLT 848, Lord Hope referred to Airedale. The Courts could grant a declaration that it was lawful to discontinue the treatment.

In Gillick vs. West Norfolk Wisbech Arce Health Authority: 1986 A.C. 112 (HL), it was stated that a doctor, who, in exercise of his clinical judgment gave contraceptive advice and treatment to a girl under 16 without her parents' consent, did not commit any offence under the Sexual Offences Act, 1956 because of the bona fide exercise of clinical judgment by the doctor and it negated mens rea which is an essential ingredient of the offence. 'Gillick test' depends on the stage of development of the child who is given the advice.

In the Siamese twins case: Re A (Children): 2000 EWCA 254, Ward LJ in the Court of Appeal summarized the principles laid down in Airedale. Then he stated that "an omission to act would nonetheless be culpable, if there was a duty to act', there was no duty if treatment was not in the best interests of the patient.

In GMC vs. Burke: (2005) EWCA (Cir) 1003(CA) Lord Philips of Worth Matravus agreed with Munby J's observations that Article 2 of the European Convention does not entitle any one to continue life-prolonging treatment where to do so would expose the patient to 'inhuman or degrading treatment', breaching Article 3. On the other hand, a withdrawal of life prolonging treatment which satisfies the exacting requirement of the common law, including a proper application of the intolerability test, and in a manner which is in all respects comparable with the patient's rights under Article 3 and Article 8, will not give rise to breach of Article 2".

But Article 2 of the European Convention would be infringed if the doctor withdrew the treatment contrary to the patient's wishes (i.e. advance directive). If English law permitted such a conduct, this would violate the country's positive obligation to enforce Article 2. The English Criminal Law would not countenance such conduct.

In Cruzan vs. Director MDH: (1990) 497 US 261 Scalia J said that omission to receive treatment to incompetent does not amount to 'suicide'. Scalia J said:

"Suicide, it is said, consists of an affirmative act to end one's life; refusing treatment is not an affirmative act 'causing' death, but merely a passive acceptance of the natural process of dying. I readily acknowledge that the distinction between action and inaction has some bearing upon the legislative judgment of what ought to be prevented as suicid.- though even there, it would seem to me unreasonable to draw the line precisely between action and inaction, rather than between various forms of inaction.

It would not make much sense to say that one may not kill oneself by walking into the sea, but may sit on the beach until submerged by the incoming tide, or that one may not intentionally lock oneself into a cold storage locker but may refrain from coming indoors when the temperature drops below freezing. Even as a legislative matter, in other words, the intelligent line does not fall between action and inaction, but between those forms of inaction that consist of abstaining from 'ordinary' care and those that consist of abstaining from 'excessive' or 'heroic' measures. Unlike action vs inaction, that is not a life to be discerned by logic or legal analyses and we should not pretend that it is."

"It is not surprising, therefore, that the early cases considering the claimed right to refuse medical treatment dismissed as specious, the nice distinction between "passively submitting to death and actively seeking it. The distinction may be merely verbal, as it would be if an adult sought death by starvation instead of a drug. If the State may interrupt one mode of self-destruction, it may with equal authority interfere with the other. John F. Kennedy Memorial Hospital vs. Heston (1971) 58 N.J. 576; see also Application of President & Directors of Georgetown College Inc: (1964) 118 US App. DC-80: 331 F 2d 1000.

The third asserted basis of distinctio.- that frustrating Nancy Cruzan's wish to die in the present case requires interference with her bodily integrit.- is likewise inadequate, because such interference is impermissible only if one begs the question whether refusal to undergo the treatment on her own, is suicide. It has always been lawful not only for the State, but even for private citizens to interfere with bodily integrity to prevent a felony. That general rule has of course been applied to suicide.

At Common Law, even a private person's use of force to prevent suicide was privileged. It is not even reasonable, much less required by the Constitution, to maintain that, although the State has the right to prevent a person from slashing his wrists, it does not have the powers to apply physical force to prevent him from doing so, nor the power, should he succeed, to apply, coercively, if necessary, medical measures to stop the flow of blood.

The state-run hospital, I am certain, is not liable under 42 U.S.C. 1983 for violation of constitutional rights, nor the private hospital liable under general tort law, if, in a state where suicide is unlawful, it pumps out the stomach of a person who has intentionally taken an overdose of barbiturates, despite that person's wishes to the contrary".



Medical Treatment to Terminally Ill Patients (Protection of Patients and Medical Practitioners) Back




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