Report No. 196

He quotes a beautiful passage from the Supreme Court of Arizona in Rasmussen vs. Fleming (1987) 154 Ariz 207 as follows:

"Not long ago, the realms of life and death were delineated by a bright line. Now this line is blurred by wondrous advances in medical technolog.- advances that until recent years were only ideas conceivable by such science fiction visionaries as Jules Verne and H.G. Wells. Medical technology has entered a twilight zone of suspended animation where death commences while life, in some form, continues. Some patients, however, want no part of a life sustained only by medical technology. Instead, they prefer a plan of medical treatment that allows nature to take its course and permits them to die in dignity."

(emphasis supplied)

He refers to the judgment of the State Appellate Court in US in In re Fiori (1995) A.R.(2d) 1350 where more than 50 decisions of US Courts were reviewed and states: "It appears near judicial unanimity has been attained in the United States to permit a course similar to that sanctioned by the learned trial Judge in this case". The following summary of US cases was given:

"(1) Absent the existence of a statute on the subject, the various legal precepts relied upon to authorize the withdrawal of sustenance from a person in a persistent vegetative state have been reduced to a 'best interest' analysis, 'substituted judgment criterion' and a 'clear and convincing' evidence standard of proof which draw their strengths from the federal and state constitutional rights of privacy.

(2) Equally applicable to the right of an individual to forego life sustaining medical treatment is the common law right to freedom from unwanted interference with bodily integrity (self-determination).

(3) But the right to bodily integrity can be exercised only by a person competent to evaluate her condition. Otherwise, it has to be exercised by a surrogate under the doctrine of 'substituted judgment'. Courts will rely on 'substituted judgment' doctrine only when the surrogate decision maker demonstrates the incompetent person's preferences with reasonable certainty. When the patient expresses a treatment-preference prior to her loss of competence, the Court views the surrogate as merely supplying the capacity to enforce the incompetent's choice.

Thus, a dying patient's right to selfdetermination out-weighs the rights of the patient's family, physician or other care provider to base a treatment determination on that individual interests or ethical imperatives. The irreversible incompetent's right to self-determination also outweighs the States interest in preserving life, preventing suicide, protecting third party dependants of the dying patient, and preserving the ethical integrrity of the medical profession. (In Re Quilan Revisited: The Judicial Role in Protecting the Privacy Right of Dying Incompetents: (1988) 15 Hast. Cnst L.Q. 479, 484-486)"

The competent patient taking an informed decision is acceptable. However, O' Flaherty J, rightly, disagrees with the 'Substituted Judgment' doctrine of US Courts (it was also rejected by the House of Lords in Airedale). He says, he prefers the 'best interests' doctrine.

Blayney J, in his concurring judgment, referred to the judgment of the US Supreme Court in Cruzan v. Director, Missouri Department of Health (1990) 497 US 261 and pointed out that in the US case, Brennan and O' Connor agreed that artificial feeding amounted to 'medical treatment'. With that view, Marshal and Blackman agreed. Rehnquist CJ too treated artificial nutrition and hydration as constituting 'medical treatment'.

Denham J, while agreeing with the trial judge, referred to In re Quinlan (1976) 355 A. 2d) 647 where it was stated that "the individual's right to privacy grows as the degree of bodily invasion increases".