The Gazette 1995

GAZETTE

EDIWH

MARCH1995

wishes, even competent patients have

had to go to court in order to decline

life saving treatment. In

Lane

Cadura

Mrs Cadura refused consent

for an amputation operation necessary

to save her life because she welcomed

death due to her age, her widowhood

and her emotional distance from her

children. In holding that her decision

was an informed one made by a

person capable of appreciating the

nature and consequences of her act the

Massachusetts Court of Appeal held

that Mrs Cadura had a constitutional

right to refuse treatment, which right

"was an expression of the sanctity of

individual free choice and self-

determination as fundamental

constituents of life. The value of life

as so perceived is lessened not by a

decision to refuse treatment, but by

failure to allow a competent human

being the right of choice."

This right to self-determination would

also appear to exist in UK law.

Arguably there is a general principle

that, as consent makes a touching

lawful, if a patient withholds consent

and refuses to be touched by a doctor,

any further touching will be unlawful

and give rise to civil and criminal

liability.

Professor Glanville

Williams has written:

"Some doctors seem to fail to realise

that if an adult patient has positively

forbidden particular treatment, they

act illegally if they administer it,

and could be prosecuted for

assault."

However, it has been argued that in

conflict with the principles of self

determination that allows a patient to

withhold consent, is the possible

paternalism of the medical profession

which continues treatment on the

basis that the patient's views are

unreliable and the treatment is

necessary. This may allow the defence

of necessity to a charge of assault

aiding and abetting a suicide

or of

neglect

. The resolution of this

conflict in Irish hospitals appears to

be by the use of the principle of

rational consent, that a patient's

wishes are followed once they are

competent and have been given all the

relevant information necessary to

make a decision. A good example of

this in practice, albeit in the UK, was

the importance attached to the

personal automony of the H-Block

hunger strikers, even in the face of

possibly serious political

repercussions.

Hunger strikes are not

unknown in Ireland. Most of them

have evolved from issues in litigation

over land where the loosing party is

committed to prison for contempt of

court. The current practice is to have

the patient psychiatrically examined.

If they are competent, the choice of

the patient is respected.

4.4 Can comments made in the past

constitute an Advance

Directive?

What of the situation where a patient

is incapable, through incompetence, of

expressing their wishes? Possible

comments by them in the past may be

accepted as an advance directive, but

some American cases show that a very

high degree of proof will be required

to permit their family to refuse life

sustaining treatment on their behalf.

In both

O'Connor

and

Cruzan

the

patients were being tube fed. Whilst

O'Connor was in a vegetative state,

Cruzan did respond but not always

consistently or appropriately. In both

cases family and friends gave

evidence of statements made by the

patients to the effect that they would

not want to go on living if they could

not do so independently. These

statements were not accepted by the

courts as sufficiently clear or

convincing evidence of the patient's

refusal to be treated and in both cases

the court ordered the wishes of the

families to be ignored and tube

feeding continued.

The result of the decisions is that the

American courts will require exacting

evidence that a patient would refuse

treatment, while accepting

unquestioningly the mere possibility

that the patient would want

treatment

. The decisions have been

criticised for promoting the

imposition of treatments that are

neither beneficial nor wanted and for

failing to consider the quality of life

of incompetent patients.

In addition,

requiring such clear instructions from

a patient without any flexible

intervention by their family might not,

in fact, accord with their wishes. One

survey amongst dialysis patients who

had drawn up living wills showed that

the majority wished their family to

have some leeway in departing from

the exact terms of their instructions.

That research would appear to

indicate that, rather than the specific

instructions of the patient relating to

what treatment they would not wish to

accept, the fundamentally important

element of a living will is the factors

the patient would wish to be taken

into account in deciding whether or

not to discontinue treatment.

4.5 Possible Procedures

for

Resolution of a Conflict over

Chosen Death

In contrast to

O'Connor

and

Cruzan

the Supreme Court of New Jersey in

the

Quinlan

case

held that both

competent and incompetent terminally

ill patients have a constitutional right

to decline life support systems, the

exercise of which did not involve any

breach of criminal law by either

patient or physician. The court

established a procedure by which an

incompetent patient, such as was

involved in the case, could make that

decision. The patient's father was

appointed guardian and the court

declared that discontinuance would be

lawful if (a) he agreed, (b) the

attending physicians concluded that

there was no reasonable prospect of

her emerging into a cognitive and

sapient state and recommended

discontinuance and (c) the hospital's

ethics committee agreed.

Although the court in

Quinlan's

case

specifically held that its judgment did

not mean that in future cases there

should be an application to the court to

authorise discontinuance, a difference

of opinion has emerged in the

American courts on this issue.

Massachusetts

and New York

court

have both rejected the approach taken

in the

Quinlan

case in holding that

decisions on withholding treatment

from incompetent patients must reside

with the judicial process alone.

However, as discussed earlier, whether

the judiciary is properly equipped to

make such decisions is questionable.

Certainly, in the light of current Irish

medical practice, it is highly unlikely