The Gazette 1993

by Dr. Eamonn G. Hall

patient, Judge Costello argued that the discontinuance in the proper discharge of a duty of care would likewise involve no legal fault and the patient's death could not be " un l awf u l" homicide. "Judge Costello posed the question whether the physician who turns off life-supporting measures would be guilty of murder under Irish law." The issues considered above arose in the recent case of Airedale National Health Service Trust -v- Bland, The Times, Law Report, December 10, 1992. The case was heard in the Court of Appeal before Sir Thomas Bingham, Master of the Rolls, Butler-Sloss and Ho f fmann, LJJ. The Court of Appeal held that the withdrawal of medical care, including the removal of artificial feeding procedures, was not unlawful where the patient suffered from a persistent vegetative state from which he would not recover and where it was known that after such withdrawal the patient would die. However, the court held that in such a case application should be made to the court to obtain its sanction for the course proposed. Leave to appeal to the House of Lords was granted. The case involved Anthony Bland who, in 1989, then aged 17, had been injured in the Hillsborough Stadium disaster and suffered irreversible brain damage and had since then been in a persistent vegetative state. In that condition he had no cognitive function, no sight, hearing, capacity to feel pain or move his limbs or communicate in any way. Unable to swallow, he was fed by naso-gastric tube. His bowels were evacuated by enema, his bladder drained by catheter. Repeated chest and urinary tract infections were treated by antibiotics.

The Comatosed Patient: Disconnecting The Feeding Tubes.

When does natural death occur? This issue has troubled doctors and lawyers. To a certain extent in relation to the terminally ill, medical technology blurs the distinction between life and death. Is consciousness the basic criterion of human life? What if a person is rendered insensate by a stroke? Justice Brennan of the US Supreme Court in Cruzan -v- Director Missouri Department of Health, 110 S.Ct. 2841, (1990) used a phrase describing persons the subject of this note as "passive prisoners of medical technology." Mr Justice Declan Costello, judge of the High Court, considered this issue in "The Terminally 111 - The Law's Concerns," 21 Ir Jur. (1986) 35. He considered the issue with particular reference to the decision of the Supreme Court of New Jersey in the Karen Quinlan case (NJ 355 A 2d 647; 97 ALR 3d 205, (1976)) where it was held that the constitutionally protected right to privacy was broad enough to encompass a patient's decision to decline medical treatment under certain circumstances. Judge Costello also considered the decision of the Supreme Court of California in Barber -v- Supreme Court of Los Angeles County, (147 Cal. App. 3d. 1006; 47 ALR 4th 1), where two surgeons had been charged with murder and conspiracy to murder after life-support measures had been terminated with respect to a deeply comatosed patient in accordance with the wishes of the patient's immediate family. The evidence in Barber established that the patient had suffered brain damage, leaving him in a vegatative state which was

The Hon. Mr. Justice Costello likely to be permanent, that there had been a written request by his family that they "wanted all machines taken off that are sustaining life," that the respirator and other life-sustaining equipment were removed and that after consultation with the family, intravenous tubes which provided hydration and nourishment were then removed. The court halted the prosecution and concluded that no breach of the criminal law had occurred. Judge Costello posed the question whether the physician who turns off life-supporting measures would be guilty of murder under Irish law. He aruged that there were persuasive arguments to support the view that even if the patient's resulting death would be "homicide", the homicide would not be unlawful and that Irish courts would adopt the views of both the New Jersey court in Quinlan and the Californian court in Barber. The judge reasoned that in the case of the competent patient, discontinuance would be in response to a request which the patient would be constitutionally entitled to make, and no unlawful " a c t " would occur. In the case of the incompetent