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by Dr. Eamonn G. Hall
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
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.