The Gazette 1995

GAZETTE

right to die without futile or unwanted

! medical intervention. The right to

privacy was first located in the

Í Constitution by the Supreme Court in

Norris v AG".

O'Higgins CJ and

McCarthy J postulated it as "a right to

I be let alone" echoing the US Supreme

| Court in a line of cases on the issue.

Whilst all five judges recognised the

right to privacy in the Constitution, the

majority held that it did not cover the

plaintiff as he wished to participate in

conduct which was morally wrong,

thus going beyond the parameters of a

right to privacy which they proclaimed

' was not absolute. In a dissenting

judgment, Henchy J pointed out that

| the right may be claimed

"for purposes not always necessarily

moral or commendable, but meriting

recognition in circumstances which

I do not endanger considerations such

as State security, public order or

morality, or other essential

components of the common good."

Whether a patient's or their family's

wish to cease medical treatment could

be considered contrary to the common

I good remains to be seen. It would

appear from US and UK caselaw that,

depending on the circumstances,

permitting withdrawal of treatment

might not cause legal conflict.

The right to privacy was actually

invoked for the first time in

Kennedy

Ireland

where Hamilton P reiterated

! the Supreme Court's earlier analysis of

j the qualified right to be left alone.

Support for the right to be left alone to

die in peace can be found in his

judgment:

"The nature of the right to privacy

must be such as to ensure the dignity

and freedom of an individual in the

type of society envisaged by the

Constitution, namely, a sovereign,

Í independent and democratic

society."

The Irish courts' reasoning is echoed

in US caselaw.

Quintan's

case

the

Supreme Court of New Jersey decided

that the constitutional right to privacy

encompassed a patient's decision to

decline medical treatment in certain

circumstances which outweighed the

state's interest in preserving life. The

court expressly held that exercise of

this constitutional right did not involve

any breach of the criminal law as

termination of treatment pursuant to a

' right of privacy was by that fact alone

lawful; a death resulting from such an

act could not be regarded as an

: unlawful one. The same right to

; privacy also placed Mrs Cadura's

right to refuse treatment on a

constitutional level.

Writing extrajudicially (in 1986 prior

I to the

Kennedy

decision which

successfully invoked the right to

privacy in the Irish High Court),

having considered the relevant US

i caselaw, Mr Justice Costello said:

"[Tjhere are very powerful

arguments to suggest that the dignity

and autonomy of the human person

(as constitutionally predicated)

require the State to recognise that

decisions relating to life and death

are generally speaking ones which a

competent adult should be free to

make without outside restraint and

that this freedom should be regarded

as an aspect of the right to privacy

which should be protected as a

'personal' right by Article 40(3)(1)...

[I]t is highly probable that the courts

would conclude that the duty to

respect the dignity of each

individual which the Constitution

imposes is one which exists as long

as the human person is alive. The

comatose patient would, like the

terminally ill competent patient,

have a correlative constitutional

right to respect. It would seem

reasonable to conclude that inherent

in this right to which both would

have an entitlement would be a right

to die with dignity."

| 2.2

The State's Constitutional Duty to

Preserve Life

No constitutional right is unlimited.

The Constitution guarantees the right

to life. The guarantee is in absolute

; terms and that means that the State,

! through its laws or agents, is not

entitled to interfere with that right. The

[ State, under the Constitution,

correspondingly takes on a duty to

uphold the right to life which may

involve protecting it from private

attack. An example might be a duty to

NEWS

JANUARY/FEBRUARY 1995

| legislate to outlaw a suicide manual,

j That duty is far more limited and is

expressed in the Constitution as to

"protect as best it may"

The interest of the State in preserving

life was discussed by the court in the

Quintan case.

Hughes C.J., in a classic

dictum, said:

"We think that the State's interest

contra

weakens and an individual's

right to privacy grows as the degree

of bodily invasion increases and the

prognosis dims. Ultimately, there

comes a point at which the

individual's rights overcome the

State interest".

The principle identified by the court

can be seen in the current medical

practice in this jurisdiction. A person

who is terminally ill is entitled to

make a decision that they should not

be given further life support. Where

the patient is unconscious the next-of-

kin, in consultation with their

physician, are entitled to reach the

same decision. The more extreme the

condition in which a patient is to be

: found, the easier it is to resolve a

dilemma in favour of non-treatment.

As life slips away, the interest of the

State in preserving it weakens in

favour of the individual's right to be

left alone. Just as a competent and

conscious patient has the right to

refuse medical treatment, so too has a

terminally ill patient the right to be

protected from an unnatural intrusion

into the course that nature has

chosen for him. The principle

j involved requires that the State's

interest in preserving life weakens and <

the individual's right to privacy grows .

as the degree of bodily invasion

increases and the prognosis for

recovery dims.

I 3. FUTILE FEEDING OR

TREATMENT OF A

;

COMATOSE PATIENT

| 3.1 Futile Medical Care

| It was never intended that the medical

profession should administer non-

beneficial care.

From this premise

emerges the principle that comatose

patients should not be given futile

medical treatment. A proposed