The Gazette 1995

GAZETTE

JANUARY/FEBRUARY 1995

The Law at Life's End

j by Peter Charleton, Barrister &

Marguerite Bolger, Barrister

Part I*

"The most difficult but the

most essential thing is to love

life, to love it even when one

suffers - because life is all."

Tolstoy

Life clings to itself, dying is not easy

and were it to be so there may well

have emerged situations in human

history when the species could have

been threatened had it not had built

into it an extreme resilience to

deprivation and accident. But, nature

has also provided a point beyond

which the human organism ceases to

function. It is with the development of

modern medical technology that the

chance of extending life beyond its

natural compass has emerged. The

possibility of skill being exercised to

save life has allowed lawyers a

ready opportunity, particularly in the

United States, to create a climate of

fear whereby what is, and what should

be, the natural course of life ending

in death is extended or deflected

in order to buy off the possibility

of litigation.

It is the lawyer's art to use blunt

legal rules to achieve a result. Often

these rules are set at odds with one

another with a view to achieving a

situation where what common sense

would have dictated in the first

instance can be allowed to prevail.

Law is simply an instrument whereby

people can express a view as to what

they think is a good idea in a particular

l situation at a particular time.

Human experience cannot encompass

all situations and legal rules are, for

that reason alone, defective. But,

these defective rules are already

with us and thus must be examined in

! the context of potential legal liability

i for medical action, or inaction, at

life-end.

Peter Charleton

1. CRIMINAL AND CIVIL LAW

1.1 Murder

It is the criminal offence of murder to

kill another person by creating,

whether by act or omission, any state

of affairs which makes a substantial

contribution to their death, intending

while doing this to cause death or

serious injury.

Where a person is

under a legally imposed duty of care,

an omission to act can be murder or

manslaughter.

The duty to act arises

out of those complex relations of

human society which create correlative

rights and duties the performance of

which is so necessary to the good

order and well-being of society that

the State makes their observance

obligatory.

There is no doubt that one

of those relationships which the law

enforces is that of doctor and patient.

Consequently, a doctor who takes a

patient under his/her care, is obliged to

take all possible steps to guard the

' patient's well-being. What is possible

is, however, to be judged by reference

to existing good medical practice and

is not, therefore, absolute. The well

being of a patient is a variable factor

to be decided by the patient in the

exercise of personal autonomy. In

cases of the patient being insensate the

paramountcy of his or her interests

continue but now fall to be decided by

Marguerite Bolger

carers, or in some cases, by application

to the court.

1.2

Manslaughter

Any act or omission which makes a

substantial contribution to the death of

a person is manslaughter if the action

in question, or the failure to do that

act, falls short of that ordinary and

necessary care expected in the

particular circumstances, to the degree

that there exists negligence in a very

high degree which can be shown to

have brought about a very high degree

of risk of substantial personal injury to

the patient.

A doctor is obliged to exercise that

degree of care and skill that will

ensure that his actions do not cause

harm to a patient, but is also governed

by an exceptional rule which indicates

that no medical practitioner will be

found guilty of negligence unless there

has been no other practitioner of equal

specialist or general status and skill

who would have taken the action or

made the judgment he or she did,

acting with the ordinary care required

of a person with his qualifications.

This means that to establish liability

for manslaughter there must exist

criminal negligence. Only in the most

exceptional circumstances will

following an accepted medical