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GAZETTE
V
I E W P 0 I N T
MWH
AUGUST/SEPTEMBER 1995
A Right To Die?
In a landmark decision (in re a Ward of
Court) on July 27, 1995, the full
Supreme Court (by a four to one
majority) upheld the earlier High Court
Judgment (Lynch J ) consenting (on the
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application of the ward's family) to the
withdrawal and termination of
abnormal artificial means of
nourishment from a ward of court in a
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near permanent vegetative state
( " PVS " ), thus ceasing to prolong her
life. This case exemplifies the burden
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placed on judges called on to decide a
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legal issue which also has a profound
moral dimension.
Medical science and the means of
health case have nearly doubled life
expectancy in the last fifty years. Yet,
along with increased longevity and the
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wonders of modern medicine, new
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problems, legal and ethical, have been
created. For example, the body can now j
be kept 'alive' long after the brain is
dead.
The ward in this case is now a woman
in her mid-forties, who some twenty-
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three years ago suffered very serious
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brain damage in the course of what
should have been a routine
gynaecological operation. Since then,
she has been near-PVS in an Irish
hospital, where she has been kept
The Supreme
Court in
session.
alive only by means of a life support
feeding system.
This is the first time that the Irish courts
have had to decide the issue of whether
it is lawful to withdraw a life support
feeding system from a patient, which
would, as a consequence, result in the
patient's death. Issues relating to the
discontinuance of tube-feeding or the
turning-off of ventilators have been
judicially considered in the USA (in
some 9 0 court applications in 24 states)
since being first considered in the high
profile
Karen Quinlan
case in 1976.
Most of those court applications in the
US have been granted and similar
applications have been granted by
courts in Canada, New Zealand,
Australia and South Africa. In the
United Kingdom, in November 1992,
the House of Lords unanimously held
that it was lawful to withdraw the life
support feeding system of Anthony
Bland, a long unconscious victim of the
Hillsborough football stadium disaster.
In its deliberations, the Supreme Court
considered whether the personal rights
protected by the Constitution would
include the right to refuse medical care
or treatment and whether the right to
life included the right to die a natural
death (as opposed to having life
terminated or death accelerated). The
Court decided that the ward's personal
rights were not lessened or diminished
by her incapacity and that the
responsibility for their exercise and
vindication rested with the Court
(rather than the next of kin) to make the
decision, with the first and paramount
consideration being the well-being,
welfare and interests of the ward. The
Supreme Court majority accepted that
the true cause of death in the event of
withdrawal of nourishment would be
the original injuries sustained.
The Supreme Court decision, even
though grounded on the Irish
Constitution, gave consideration to
precedents from the other common law
jurisdictions where the issue of
withdrawal of a life-support feeding
system had been addressed. It appears
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that such decisions in those other
jurisdictions have not resulted in a flood
of court applications. In the UK, only
five similar applications have been
made since the 1992 House of Lords
judgment in the
Bland
case.
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The Supreme Court (following the
Bland
judgment and a number of the
American judgments) decided that the
use of a gastrotomy tube for feeding
purposes constituted "medical
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