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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.