The Gazette 1995

GAZETTE

EDIWH

MARCH1995

4. Neither can it be assumed that a

doctor can make a decision alone

as it would seem that they are more

willing than either family or

patients to withdraw treatment.

has been suggested that fit young

doctors do not appreciate the

positive aspects of apparently less

independent elderly patients.

7,1

Most disturbing of all is an

indication of a high degree of

willingness on the part of the

medical profession to ignore living

wills altogether, in one

international study 40% of doctors

said they would have treated the

patient in a manner inconsistent

with their stated requests.

In consideration of these limitations

and difficulties of living wills, it may

be that some form of judicial forum

could serve a purpose in balancing the

rights, the needs and the concerns of

patient, family and doctor. However

even in spite of inevitable difficulties,

there is evidence to show the benefits

in practice of living wills.

This must

suggest a greater move towards the

medical attitudes envisaged by

Kjellstrand:

"Physicians need to teach

themselves to recognise better the

shadow lines between prolonging

life and prolonging dying and to

understand that death should be a

human act of dignity and not a

prolonged mechanical failure that

can be fixed with even more

technology."

5. CONCLUSIONS

People should not be kept alive

against their wishes except where that

wish conflicts with obvious prospects

for recovery. Recovery should be

effected where it is reasonably

possible in the context of a return to

something approaching health. To do

otherwise tends towards the doctor

allowing himself to be the instrument

of fulfiling a death wish. As in nature,

as prospects for recovery diminish,

either by reason of age or illness, less

extreme steps are required to fulfil the

duty to protect life. There comes a

point at which the course of nature

will be so deflected and the obvious

and common sense right of a person to

die in peace will be so intruded upon,

that further treatment constitutes in

itself a wrongful act, an offence

against life itself. In approaching the

problems associated with those too ill

to exercise autonomy the principles of

asking what treatment, or lack of it, is

in the patients' best interests offers at

least a challenge to humility. It seems

senseless, and perhaps is also legally

wrong, to continue treatment on an

insensate patient where no rational

autonomous being would chose life-

prolonging measures. In that context

biological life is not all, stripped as it

is of all the attributes of consciousness

and of dignity.

The problem is that neither patients,

their next of kin, lawyers or

legislatures can be guaranteed to have

perfect wisdom. Whatever way the

problems are worked out one hopes

that the current practical attitude of

the majority of the medical profession

in Ireland will not be intruded upon by

those with less knowledge. It is to be

hoped that Irish lawyers do not show

the same enthusiasm as their

American colleagues for venturing

into the area of life-end, as, to quote

George Elliot:

"Legal training only makes a man

more incompetent in questions that

require knowledge of another

kind".

*This paper was originally prepared

by both authors for delivery by the

first author at an international

conference presented by the

Department of Age Related Health

Care and Cardiology at the Meath-

Adelaide Hqspitals on Saturday the

11 June 1994. The paper was then

extensively revised by the second

author. Part I was published in the

Jan/Feb 1995 issue at P.29

References

35. The March 1993 bulletin of the British

Medical Association and the Royal College

of Nursing indicates that it is appropriate to

consider a DNR decision in the following

circumstances: (a) Where the patient's

condition indicates that effective CPR is

unlikely to be successful, (b) Where CPR is

not in accord with the recorded, sustained

wishes of the patient who is mentally

competent, (c) Where successful CPR is

likely to be followed by a length and

quality of life which would not be

acceptable to the patient.

36. Torian et al 'Decisions for and against

Resuscitation in an Acute Geriatric Medical

Unit' 152 (1992)

Arch. Intern. Med.

561.

37. A common such booklet distributed in

Canadian hospitals is Molloy and Mepham

'Let Me Decide' (1989) which, in its 46

pages, contains clear explanations of

treatment options, convenient pull-out

forms and a completed sample Directive.

38.

In re Jobes

529 A.2d 434(NTJ. 1987).

39. Relman A.S. 'The Saikewicz decision:

judges as physicians'

N Engl J Med

298

( 1 9 7 8 ) 5 0 8.

40. Dr. Rothman, writing in the June 1987

edition of 'Neurology'; cited in Costello J.

loc. cit.

41.

Barber

Superior Court of Los Angeles

County

147 Cal App. 3d 1006; 47 ALR 4th

42.

Cox,

see The Independent, 10

September 1992;

R v Adams

[1967] Crim.

L.R. 365.

43.

In the matter of Karen Quintan

(NJ) 355

A2d 647; 97 ALR 3d 205.

44.

In re O'Connor

72 N. Y. 2d 517, 531 N.E.

2d 607, 534 N.Y.S. 2d 886 (1988);

Cruzan

v Harmon

760 S.W. 2d 408 (1988).

45. Kjellstrand C.M. 'Who Should Decide

About Your Death?'

JAMA

267(1992)103.

46. Mass App 376 NE2d 1232; 93 ALR 3d 59.

47. Kennedy I 'The Legal Effect of Requests by

the Terminally ill and Aged not to receive

further Treatment from Doctors' [1976]

Crim. L.R.

217. See

Airedale NHS Trust

Bland

[1993] 1 All E.R. 821 at 860 and

F v

West Berkshire Health Authority

[1989] 2

All E.R. 545.

48. Williams,'Euthanasia'41

Medico-legal

Journal

14, 24.

49. Kennedy I.

loc. cit.

at 221-223 where he

says this undermines the patient's self-

determination, which is the last right

remaining for the terminally ill or the aged.

50.

Suicide Act

1961 section 2.

51.

Istan

[1893] 1 Q.B. 450. Both possibilities

are dismissed by Kennedy,

loc. cit.,

invalid justification for ignoring the request

of the patient that treatment be

discontinued.

52. See generally Zellick G. 'The forcible

feeding of prisoners: An examination of the

legality of enforced therapy' [1976]

Public

Law

153.

53. Dr. Charles Smith; personal

communication.

54. On both cases see generally Lo et al

'Family Decision Making on Trial'

322( 1992)

N Engl J Med

1228.

55. Annas G.J. 'Precatory prediction and

mindless mimicry: the case of Mary

O'Connor.'

Hastings Cent Rep

18(1988)31.

56. Lo et al

loc. cit.

57. Schgal et al 'How Strictly do Dialysis

Patients want their Advance Directives

followed?'

JAMA

267(1992)59.

58. (NJ) 355 A2d 647; 97 ALR 3d 205. See

generally Costello J 'The Terminally 111 -

The Law's Concerns' (1986)

Irish

Jurist.

59. See Costello

loc. cit.

60.

Superintendent v Saikewicz

373 Mass. 728.