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Report No. 196

Scalia J then deals with the dissent by Brennan & Stevens JJ and says:

"the State has no such legitimate interest that could outweigh 'the person's choice to put an end to her life" the State must accede to her 'particularized and intense interest in self-determination in her choice whether to continue living or die."

For, insofar as balancing the relative interests of the State and the individual is concerned, there is nothing distinctive about accepting death through the refusal of 'medical treatment", as opposed to accepting it through the refusal of food, or through the failure to shut off the engine and get out of the car after parking in one's garage after work. Suppose that Nancy Cruzan were in precisely the condition she is in today, except that she could be fed and digest food and water without artificial assistance, how is the State's interest in keeping her alive thereby increased or her interest in deciding whether she wants to continue living reduced?"

(emphasis supplied)

He stated that he could not agree with Brennan & Stevens that a person could make the choice of death. That view the State has not yet taken. The Constitution does not say anything on the subject.

In Canada, in Nancy B vs. Hotel Dieu de Quebec (1992) 86 DLR (4th) 385, the Dufour J of the Quebec Supreme Court said that the plainiff's death would be natural and would not involve homicide or suicide. He observed: "In any event, declining life-sustaining medical treatment may not properly be viewed as an attempt to commit suicide." The disease is allowed to take a natural course and "if death were eventually to occur, it would be the result, primarily, of the underlying disease, and not the result of a selfinflicted injury".

Sopinka J in Rodriguez vs. AG: 1993(3) SCR 519 (Canada), speaking for majority, quoted from Airedale where Lord Goff referred to the Report of the Law Reform Commission (1983) (of Canada). It was there stated that the criminal codes be amended to provide that the homicide provisions be not interpreted as requiring a physician "to undertake medical treatment against the wishes of a patient, or to continue medical treatment when such treatment 'has become therapeutically useless".

In New Zealand in Auckland Area Health Board vs. AG: 1993(1) NZLR 235, Thomas J stated that if the doctor was justified in withdrawing life support, there was 'lawful excuse' which was a defence if any criminal action were to be taken against him. If the doctor was not under an absolute legal duty to provide or continue with life support or he had a 'lawful excuse for discontinuing it, it may then be said that he or she had not legally caused death of the patient. Continuing medical treatment where it was fruitless was 'only to defer the death of patient' and nothing more. Discontinuance accords with 'good medical practice'.

Acting under principles of 'good medical practice' cannot make a doctor liable for any criminal offence. If the cause of death of the patient was not the criminal intent of the doctor but was based on good medical practice and if that was good for section 151 of the NZ Crimes Act, 1961, it was also good for section 164 which deals with the offence of 'acceleration of death'. The withdrawal of life support is not an unlawful act for purposes of section 160 in determining whether a homicide was culpable or not. It cannot be regarded as an unlawful act when the doctors concerned were not in breach of duty and had a lawful excuse.



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




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