The Gazette 1995

GAZETTE

NEWS

J ANUARY / F E BRUARY 1995

i comatose patient, unable to consent to

it, was an invasion only justified by

the defence of necessity. Such only

arose if treatment was to the benefit of

a patient. In this context treatment

includes antibiotic care and artificial

feeding. As each such treatment

constitutes an invasion it was wrong to

speak of withdrawal but more correct

to classify such action as a

discontinuance.

*This paper was originally prepared

by both authors for delivery by the

first author at an international

conference presented by the

Department of Age Related Health

Care and Cardiology at the Meath-

Adelaide Hospitals on Saturday

11 June 1994. The conference was

organised by Dr. Desmond O'Neill

M.D. The paper was then extensively

revised by the second author. Part 11

of the article will be published in the

next issue of the Gazette.

References

1. Quoted in Gardner B.P. et al 'Ventilation or

dignified death for patients with high

tetraplegia' (1985) Brit. Med. J. 1620.

2. S.4 Criminal Justice Act, 1964 which states:

"(1) Where a person kills another

unlawfully the killing shall not be murder

unless the accused person intended to kill,

or cause serious injury to, some person,

whether the person actually killed or not.

(2) The accused person shall be presumed to

have intended the natural and probable

consequences of his conduct; but this

presumption may be rebutted." See

generally Charleton P. 'Offences Against the

Person' (Dublin, 1992) at chapter 2.

3. Archbold (1922) at 869-71. See further

Dennis, 'Manslaughter by Omission' (1980)

33 Cur. L. Prob. 255; Gamble 'Manslaughter i

by Neglect' (1977) 1 Crim. L.J. 247; Hughes

'Criminal Omissions' (1957) 67 Yale L.J.

590; Glazebrook 'Criminal Omissions: The

Duty Requirement in Offences Against the

Person' (1960) 76 L.Q.R. 386; Hogan

'Omission and the Duty Myth' Criminal Law

Essays 85; Williams 'What Should the Code

do about Omissions?' (1987) 7 L.S. 92; and

see comments on

Miller

[ 1983] 2 AC 161;

[

[1983] 1 All ER 978; [1982] 2 WLR 539, 77

Cr. App. R. 17; [1983] Crim. L.R. 466 H.L.

in (1984) 22 Atlal. Rev. 281; see also

(1980) 43 M.L.R. 685 and [1980] Crim.

L.R. 552.

Taktak

[1988] 34 A.Crim. R. 334 CCA

NSW.

5. The People (A.G.) v Dunleavey

[ 1948] IR

95 C.C.A.;

Lowe

[1973] QB 702.

Dunne v National Maternity

Hospital

[1989] IR 91; [1989] ILRM 735. On

homicide by omission, see generally

Charleton P. loc. cit. at 95-104.

7. S. 4 Criminal Justice Act 1964. See, in this

context, the analysis by Lord Browne-

Wilkinson in

Avidale NHS Trust

Brand

[1993] 1 All ER 821 at 880-883.

8. Palmer H. 'Dr. Adam's Trial for Murder'

[1957] Crim. L.R. 365 at 375.

9. The Independent, 10 September 1992. Dr

Cox was not found guilty of murder because

the patient's state of health was so terminal

that it was impossible to say whether the

drug or her medical condition had killed

her. See the discussion by Lord Goff in

Bland

, above at [1993] 1 All ER at 867.

10. It should be noted that voters in the US state

of Oregan are soon to decide by public

ballot whether patients with less than six

months to live should be able to acquire

prescriptions for deadly drugs ('Oregan

Death With Dignity Act'). Similar

legislation failed in Washington state in

1991 and in California in 1992. The

Independent, 20 October 1994.

11. Appl. 835/'78

Federal Republic of

Germany.

12. Appl. 19983/'82

United Kingdom. D &

33 (1983) p.270 (271-272).

13. [1984]IR 36.

14. [1987]IR 587.

15. See generally Costello D. 'The Terminally

111 - The Law's Concerns' (1986) Ir. Jur. 35.

16.

In the matter of Karen Quinlan

(NJ) 355

A2d 647; 97 ALR 3d 205.

17.

Lane

Cadura

Mass App 376 NE2d 1232;

93 ALR 3d 59. The facts of that case are

given below.

18. Costello D.

loc. cit.

at 42

19. Article 40.3.2° "sa mhéid gur féidir é".

20. at 663.

21. Jecker& Scheiderman 'Medical Futility:

The Duty not to Treat' (1993) Cambridge

Quarterly of Healthcare Ethics 151. In

Bland

the House of Lords pointed out that

the principle applying to the conscious was

consent to treatment. Where a patient was

unconscious then only the principle of

necessity justified medical invasion. If a

treatment was not in the best interest it

could not be lawful and if or when it ceased

to be in the interest of a patient it could be

discontinued even if death was the

inevitable result: see [1993] 1 All E.R.,

Lord Keith at 860-861; Lord Goff at 868-

871; Lord Lowry at 876-879 and Lord

Browne-Wilkinson at 881-883.

22. Scheiderman et al 'Beyond Futility to an

Ethic of Care' 96( 1994)

Am J of Med

110;

Scheiderman & Jecker 'An Ethical Analysis

of the Use of Futility' 153(1993)

Arch.

Intern. Med.

2195; Scheiderman & Jecker

'Futility in Practice' 153(1993)

Arch.

Intern.

Med.

437; Scheiderman & Jecker 'Ceasing

Futile Resuscitation in the Field: Ethical

Considerations' 152(1992)

Arch.

Intern.

Med.

2392. In deciding whether the

definition is satisfied it is necessary to

distinguish between the effect the treatment

has on a specific body part, as versus the

patient's ability to enjoy the overall benefit

if the treatment; Scheiderman & Jecker

'Medical Futility: Its Meaning and Ethical

Implications' (112 91990)

Anals of Internal

Med.

949.

23. Kennedy I. 'Switching off Life Support

Machines' [1977]

Crim. L.R.

445.

24.

Barber

Superior Court of Los Angeles

County

147 Cal App. 3d 1006; 47 ALR 4th

I. See also Greenspan, United States Law

Week, 59 LW 2049 and the discussion on

the

Curzan

case in Lancet Vol. 337, Jan 12,

1991, 105-6 and in the BMA Discussion

paper on Treatment of Patients in Persistent

Vegetative State, September 1992 at 17-22.

25. (1957) 49

Acta Apostolicae Sedis

1027. See

also 'The Catholic Tradition on the use of

Nutrition and Fluids' 'America' (1987) May

356; Declaration on Euthanasia - Vatican

Congregation for the Doctrine of Faith, June

26, 1980. On withdrawing feeding see the

analysis by Kevin O'Rourke in 'America',

Nov 22, 1986. For a summary of the Jewish I

position see Dr A.S. Abraham Halachah

urefuah. Vol 2 189 and Igrot Moshe,

Choshen mishpat, Vol 7; 73:2.

26. Mason and McCall-Smith'Butterworths

Medico Legal Encyclopedia' (1987).

27. Scheiderman & Jecker 'Futility in Practice'

loc. cit.

at 437.

28.

Supra

at 440.

29. Referred to in Mason J.K. 'Human Life and

Medical Practice' (1988) at 47.

30. Scheiderman et al 'Beyond Futility to an

Ethic of Care'

loc. cit.

31. Scheiderman & Jecker'Futility and

Rationing' 92(1992) Am. J. of Med. 189.

32. Emanuel 'The Economics of Dying' (1994)

N. Engl. J. Med.

33. Mason J.K.

op. cit.

at 28.

34.

In the matter of Claire C. Conroy

464 A 2d

303 (NJ, 1983);

Avidale NHS Trust

Bland

[1993] 1 All E.R. 821 and

Frenchay

Healthcare NHS Trust

[1994] 2 All E.R. !

403. See above fn 21; For a Catholic

comment approving the decisions see Kevin

Kelly 'Rest for Tony Bland', The Tablet 13

March 1993, 333-334.

•

Annual

Conference 1995

The Annual Conference 1995 will be

held from

11 - 14 May, 1995

in the

Hotel Europe,

Killarney, Co. Kerry.

The Hotel Europe, now under

new

management

will provide an ideal

location for this years conference.

Surrounded by spectacular

countryside, the 5-star Hotel Europe

is located directly by the lakeshore.

The conference seminar which will be

held on Friday 12 May is entitled

"Developing Your Business:

Finding and Minding New Clients".

A varied programme of social and

sporting events has been planned and

the weekend will culminate with the

gala conference banquet on Saturday |

night. A brochure with booking form

will issue in early February. Book

early to avoid disappointment.

• Í