The Gazette 1995

GAZETTE

MARCH 1995

that such an application would be

made to an Irish court as there is a

lengthy

medical

procedure which is

followed prior to a ventilator being

switched off, including counselling of

the relatives.

In the UK, pending the

full development of legal rules by

Parliament or by the judges, the

appropriate procedure in the case of a

patient in a persistent vegetative state,

is for the hospital to seek a declaration

that the discontinuance of care is

lawful.

Under correct UK medical

practice, likely to be mirrored in

Ireland, there are four safeguards to be

fulfiled before such an application is

even considered: (1) every effort

should be made at rehabilitation for at

least six weeks after injury; (2) the

diagnosis of irreversible PSV should

not be considered confirmed until at

least twelve months after the injury,

with the effect that any decision to

withhold life-preserving treatment will

be delayed for that period; (3) the

diagnosis should be agreed by at least

two independent doctors; and (4)

generally, the wishes of the patients

immediate family will be given great

weight.

4.6 The Usefulness of Legal Rules

From this it can be seen that the

life/death decision to be made is a

medical decision subject to approval

in some cases.

While this may

change in the future, as it did in the

US during the 1980s as discussed

above, there is some recent indication

in US jurisprudence that the sole

requirement for doctors to remain

within the law is that of good faith.

This suggests a move towards the

practice of Irish doctors, which has

been welcomed by the American

medical profession.

The greater

discretion enjoyed by the medical

professionals in the absence of the

constraints of law was discussed by

Mason and McCall-Smith in the

context of a criticism of US 'Allow to

Die' legislation:

"It has been well argued that such

state control may be counter

productive and operate against the

patient's best interest.

" Certainly,

any law must be difficult to apply;

the treatment of the terminally ill is

so inextricably a matter of medical

practice and clinical decision that it

is probably better left that way. The

growth of the hospice movement is

likely to have a profound influence

on attitudes."

4.7 A Possible Statutory

Framework

for Advance

Directives

The UK Law Commission published a

consultation paper On Mental

Incapacity and Medical Treatment in

1993. Presently, in that jurisdiction

the courts can actively consent to a

withdrawal of treatment using the

'best interests' criterion where the

patient is a minor, is insensate or is a

Ward of Court. Whilst the general

practice of the medical profession has

been to apply such a criterion in all

cases, the paper points out that where

there were disputes doctors were left

feeling vulnerable and insecure and

increasingly have sought protection

and general guidance from the courts

as to the legality of certain medical

procedures, particularly the stopping

of treatment where death would

follow. The common law has been

limited to declaring treatment legal in

individual cases and issuing general

guidelines. The question is:

"How does one legislate for a range

of contingencies without restricting

them, or avoid creating the need for

expensive recurrent applications to

the courts or some other designated

body for approval of individual

treatments?"

The Consultation Paper suggests the

creation of a statutory framework that

provides for tiers of empowered

decision-makers with a judicial forum

at its head for difficult cases. There is

also a suggested obligation to consult

the nearest relative or some other

designated person in reaching a best

interests decision. Most importantly,

the Commission positively supports

the introduction of "advance

directives". The Lancet, whilst

welcoming those suggestions, entered

a note of caution:

recognition of advance directives

and to invest persons or courts with

the powers to consent and advise in

individual cases, but great care must

be taken not to erect an elaborate

bureaucracy, with expensive

managers of medical affairs, with

committees of designated, dithering

decision-makers, and with a

plethora of forms to be filled and

filed, all before a useful treatment

can be offered or validly refused."

4.8 Difficulties to be considered in

drawing up Advance

Directives

Although many members of the legal

and medical professions have called

for proper guidelines and guarantees

on the legality of living wills, there

are a number of potential difficulties

which ought to be considered.

1. There is an obvious need for a

patient to discuss their instructions

with their doctor and possibly with

their family or other person whom

they wish to designate as a

surrogate decision-maker.

Research has shown that, whilst

many patients would welcome such

an opportunity, few actually obtain

it.

This can lead to a decision

being improperly documented

leading to inappropriate

resuscitation and the non-

designation of patients who should

not be resuscitated, as was found in

one UK hospital.

2. In discussions between the patient

and their doctor, it is vital that the

patient be made aware of the

realities of CPR and the chances of

survival

as it has been suggested

that there is inadequate information

given to patients on CPR, which

results in many patients having

unreal expectations of it.

3. Even where the chosen surrogate

decision-maker is someone very

close to the patient, research has

shown that their judgements may

not coincide with the wishes of the

patient.

One can only conclude

that a surrogate, even where

designated by the patient, can not

necessarily have an absolute right

to decide on withholding treatment

without consultation with others.

"While there is much of value in

these proposals, will the proposed

new comprehensive statutory

framework be an improvement in

practice? There is a need for