The Gazette 1995

GAZETTE

definition is that a treatment is futile

where the last one hundred cases in

which it was used proved useless, but

has a minimum threshold of benefit

that is greater than zero.

Permitting the

withdrawal

of futile

treatment, such as tube feeding or

treating infection, from a patient who

has gone beyond recovery would seem

to be more complex than choosing

not

to administer life saving treatment

such as cardio-pulmonary

rescusitation. One line of reasoning

categorises the former as an omission

and the latter as a positive act, but that

has been rightly criticised.

On the

other hand an American case which

clearly endorsed the categorisation of

switching off a life support machine as

an omission and thereby incapable of

attracting legal culpability, held that

the withdrawing of medical nutrition

and hydration ought to be evaluated in

the same manner as other mechanical

devices such as respirators and that

legally no distinction should be drawn

between them.

It remains to be seen

whether the Irish courts would apply

the same criterion to both advance

directives such as

do not rescusitate

orders and the ceasing of futile

treatment. The equal status attached to

positive acts and omissions in the

context of a duty to act, show that

criminal law principles are against

drawing such a distinction. Advance

directives are discussed later in Part II

of this article.

Another method of resolving the

conflict is to classify the treatment as

'ordinary' or 'extraordinary', a moral

test generally attributed to Pope Pious

XII:

"Man has a right and duty in the case

of severe illness to take the

necessary steps to preserve life and

health... But he is obliged at all

times to employ only ordinary

means... that is to say those means

which do not impose an

extraordinary burden on himself or

others."

It is now perhaps more appropriate to

refer to a productive or non productive

treatment test, thereby firmly

focussing on the individual case, as the

primary determining factor must be the

best interests of the.patient.

Circumstances may exist where, on the

postulated test, the interest of the

patient has to be seen in the context of

the resources demanded. The Aristian

thrust of the Constitution may tend

towards an interpretation of the duty to

; .support life which as well as

considering privacy may also

evaluate the proposed or continuing

treatment on the basis of how it

is classified.

Whilst there is a fear that providing for

a definition of treatments that may be

deemed futile, and thereby permitted

to be withdrawn, may provide a

floodgate for medical paternalism, it

has been submitted that those fears are

more likely to be realised in the

present state of ambiguity.

Thus,

whilst it is unlikely that futility could

be provided for by statute as it

depends on a complex variety of

circumstances, it is important that

specific standards are offered by the

medical profession. Otherwise, as with

advance directives, the courts will be

forced to take over and that creates the

risk of ad hoc emotionally propelled

decisions, rather than the development

of a definition of futility.

3.2 Futility, Rationing and Cost

Containment

The greatest risk posed by the

principle of medical futility is that it

will be confused with rationing and

cost containment. In an age of rising

health care costs, increasing

technological health care procedures

and a growing elderly population who

are the most significant users of the

health care system such comparisons

are inevitable. Indeed the Archbishop

of Canterbury had the courage to point

out that the costs of preservation of

life were becoming insupportable in

his Edwin Stevens Lecture in 1977,

and received a bad press for so doing.

However futility is a different

phenomenon to either rationing or cost

containment.

A futile medical

! treatment is one which is decided to

have no benefit to an individual patient

| and the economic state of the health

system is irrelevant. Rationing also

involves withholding treatment from a

| particular group of patients, but for the

purpose of using limited resources to

treat others. Cost containment involves

an overall communal reduction of

limited resources. Whilst futility and

rationing or cost containment can

occur in one situation, the fundamental

distinctions are clear

and it is vital

that these distinctions are appreciated.

In any event there is evidence that

advance directives result in

insignificant savings to the medical

scheme. It is estimated that if all

Americans had advance directives,

the entire saving would be only 3.3%

due to the expensive nature of

labour intensive humane care at

life's end.

3.3 Practical Implications for Irish

Medical Practice

So what of the legal situation where a

comatose patient in an Irish hospital is i

being tube fed and infections, which

may occur from time to time, are being

treated? Does there come a point when

the law allows such feeding and

treatment to be discontinued? It is

unlikely that either can be regarded as

"extraordinary" measures, certainly

while some real prospect for recovery

exists. It is submitted that if a

comatose patient who has gone beyond

any realistic hope of recovery

develops a terminal infection (which

would seem to be inevitable at some

stage), nature should be permitted to

take its course, and the body should be

allowed to die by not using unnatural

treatment. There may also be some

circumstances where tube feeding is so

invasive and extraordinary a measure

and so productive of any result to the

patient but indignity that it may be

regarded as a treatment and so

withdrawn. The possible precedents

here are confused. It appears that the

practice of not feeding an infant who

is substandard only by reason of its

mental state is currently illegal in the

UK, Canada and Australia.

However,

some American courts appear to be

willing to allow such treatment

(including feeding) to be withdrawn by

competent patients, or where

incompetent, by their guardian. In the

UK the withdrawal of feeding has been

permitted from two patients who

continued in a persistent vegetative

state beyond the time for the

possibility of any recovery.

The

principle applied was that to treat a