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GAZETTE
JANUARY/FEBRUARY 1995
procedure, treatment or judgment
amount to negligence.
1.3 Civil Negligence
Section 48 of the Civil Liability Act of
1961 makes it an actionable wrong to
cause the death of a person by any
wrongful act which would have
entitled the dead person, had they
lived, to maintain an action and
recover damages. In this context, it is
possible for a doctor to enter into a
contract with a patient to keep him or
her alive indefinitely, and so to bind
himself or herself to throw all
available medical resources into that
task. It is, however, an utterly
I unrealistic contract and one which a
I court would never uphold. Equally, in
this context, it is possible for a person
to contract with a hospital not, under
; any circumstances, to revive them
from an unconscious state. Both
examples are so extreme as to be
ludicrous. The
life at all costs
example
presupposes the possibility of paying
for a treatment almost endless in terms
of expense and time. The
life under no
circumstances
example postulates the
existence of a death wish which, if it
were that strong, a person would have
already ended his life. To enforce this
latter contract would be contrary to
public policy and would be therefore
void. The wrongful act referred to in
; section 48 is, therefore, in this context
clearly an act of negligence, or to put
it more plainly, a want of ordinary,
accepted, appropriate medical care.
1.4 Murder, Manslaughter and
Negligence in Palliative Care
When these three rules are analysed as
to their application in cases of terminal
illness, it will be found readily that the
exceptions grafted onto them allows a
wide discretion to the treating doctor.
To be guilty of murder, a person must
intend, by what they do and by what
they fail to do, to cause death and also
i to be guilty of an unlawful act.
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A
person intends to cause death when
they realise that their conduct, or the
consequences of their conduct, will
have that result. However the medical
I profession uses the principle of double
intention or double effect when they
know that their action, or inaction, will
result in death. This does not incur
J
criminal liability, as was recognised
j
judicially by Devlin J in
R v Adams
in
a dictum that emphasises intent:
"If the first purpose of medicine -
the restoration of health - could no
j
- longer be achieved, there was still
much for the doctor to do, and he
was entitled to do all that is proper
and necessary to relieve pain and
suffering, even if the measures he
takes may incidentally shorten life
by hours or perhaps even longer."
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The practice in Irish hospitals is to
treat the terminally ill patient for pain,
or if that pain has gone beyond
management, to induce and maintain a
coma where death can occur naturally.
As a condition worsens, pain
controlling medicines are increased in
dosage and frequency. Such a degree
of training and experience are needed
that palliative care is a recognised
speciality. The current practice cannot
j be unlawful, and cannot therefore be a
criminal or civil wrong, as each step is
carefully taken and considered in the
light of the patient's needs. Where
there are prospects for recovery, the
form of medical care adopted must
have regard to the duty of the doctor
not to damage the human organism
and so cause disability on possible
recovery. Actions can be taken which
damage health but only if these are a
necessary by-product of the
appropriate care. If a non-damaging
| treatment can be chosen, with equal
result, it is what the law requires
where the patient has a prospect of
returning to some degree of long-term
health. The fundamental principle is
that the law allows persons with
experience in the science of caring for
j the sick to evolve procedures of care
! designed to assist the patient as he or
I she dies.
A case where the doctor acted contrary
to this principle, and so incurred
criminal liability, was the recent case
! of Dr. Cox who was found guilty of
| attempted murder.
9
Dr. Cox's patient
requested him to take her life because
she was in so much pain. He did so by
administering a drug chosen in order
to, and having no other effect than, to
stop her heart. He was not a terminal
care specialist and, it would appear,
had made no effort to consult such a
specialist. There was no application
here of the principle of double effect.
However Dr. Cox could have escaped
liability by taking some accepted
| medical action to relieve pain and
thereby, if necessary, causing death as
a by product,
albeit
welcome, of the
treatment.
10
j
The examples of Dr. Adams and Dr.
Í Cox relate to positive actions taken by
them resulting in the shortening of a
j
patient's life. A different issue arises
where doctors are considering
initiating measures to preserve life or,
where those have begun, considering
| terminating them. Then, where the
! patient is conscious, the choice is his
, or hers. Where the patient is
1
unconscious the discussion focuses on
the end to be achieved, what has been
achieved by an existing treatment, the
degree of interference with the course
of nature imposed by the treatment,
the result of discontinuance and the
right of the patient for carers to have
regard to his or her best interests.
2. CONSTITUTIONAL LAW
2.
1 The Right to Privacy
Does the right to privacy, as
recognised in the Irish Constitution,
| encompass the right to be left alone to
die in peace?
j
Under Article 8 of the European
Convention on Human Rights
everyone has the right to respect for
j his private and family life. It has been
I recognised by the Commission that a
compulsory psychiatric examination
constitutes a breach of this provision"
which gives rise to the possibility of
the Convention protecting the right to
be left alone to die in privacy.
However in that same case the
examination was justified for,
inter
alia,
"the protection of health". In
addition the Commission later refused
to declare a conviction of aiding and
abetting suicide a breach of Article 8
"by virtue of their trespass on the
public interest of protecting life."
12
This leaves the sole possibility of
using Bunreacht na hÉireann to source
Í a right to privacy, encompassing the
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