The Gazette 1995

GAZETTE

JANUARY/FEBRUARY 1995

procedure, treatment or judgment amount to negligence.

result in death. This does not incur J criminal liability, as was recognised j judicially by Devlin J in R v Adams in a dictum that emphasises intent: "If the first purpose of medicine - the restoration of health - could no j - longer be achieved, there was still much for the doctor to do, and he was entitled to do all that is proper and necessary to relieve pain and suffering, even if the measures he takes may incidentally shorten life by hours or perhaps even longer." 8 The practice in Irish hospitals is to treat the terminally ill patient for pain, or if that pain has gone beyond management, to induce and maintain a coma where death can occur naturally. As a condition worsens, pain controlling medicines are increased in dosage and frequency. Such a degree of training and experience are needed that palliative care is a recognised speciality. The current practice cannot j be unlawful, and cannot therefore be a criminal or civil wrong, as each step is carefully taken and considered in the light of the patient's needs. Where there are prospects for recovery, the form of medical care adopted must have regard to the duty of the doctor not to damage the human organism and so cause disability on possible recovery. Actions can be taken which damage health but only if these are a necessary by-product of the appropriate care. If a non-damaging | treatment can be chosen, with equal result, it is what the law requires where the patient has a prospect of returning to some degree of long-term health. The fundamental principle is that the law allows persons with experience in the science of caring for j the sick to evolve procedures of care ! designed to assist the patient as he or I she dies. criminal liability, was the recent case ! of Dr. Cox who was found guilty of | attempted murder. 9 Dr. Cox's patient requested him to take her life because she was in so much pain. He did so by administering a drug chosen in order to, and having no other effect than, to stop her heart. He was not a terminal care specialist and, it would appear, A case where the doctor acted contrary to this principle, and so incurred

had made no effort to consult such a specialist. There was no application here of the principle of double effect. However Dr. Cox could have escaped liability by taking some accepted | medical action to relieve pain and thereby, if necessary, causing death as a by product, albeit welcome, of the treatment. 10 j The examples of Dr. Adams and Dr. Í Cox relate to positive actions taken by them resulting in the shortening of a j patient's life. A different issue arises where doctors are considering initiating measures to preserve life or, where those have begun, considering | terminating them. Then, where the ! patient is conscious, the choice is his , or hers. Where the patient is 1 unconscious the discussion focuses on the end to be achieved, what has been achieved by an existing treatment, the degree of interference with the course of nature imposed by the treatment, the result of discontinuance and the right of the patient for carers to have regard to his or her best interests. Does the right to privacy, as recognised in the Irish Constitution, | encompass the right to be left alone to die in peace? j Under Article 8 of the European Convention on Human Rights everyone has the right to respect for j his private and family life. It has been I recognised by the Commission that a compulsory psychiatric examination constitutes a breach of this provision" which gives rise to the possibility of the Convention protecting the right to examination was justified for, inter alia, "the protection of health". In addition the Commission later refused to declare a conviction of aiding and abetting suicide a breach of Article 8 "by virtue of their trespass on the public interest of protecting life." 12 This leaves the sole possibility of using Bunreacht na hÉireann to source Í a right to privacy, encompassing the be left alone to die in privacy. However in that same case the 2. CONSTITUTIONAL LAW 2. 1 The Right to Privacy

1.3 Civil Negligence

Section 48 of the Civil Liability Act of 1961 makes it an actionable wrong to cause the death of a person by any wrongful act which would have entitled the dead person, had they lived, to maintain an action and recover damages. In this context, it is possible for a doctor to enter into a contract with a patient to keep him or her alive indefinitely, and so to bind himself or herself to throw all available medical resources into that task. It is, however, an utterly I unrealistic contract and one which a I court would never uphold. Equally, in this context, it is possible for a person to contract with a hospital not, under ; any circumstances, to revive them ludicrous. The life at all costs example presupposes the possibility of paying for a treatment almost endless in terms of expense and time. The life under no circumstances example postulates the existence of a death wish which, if it were that strong, a person would have already ended his life. To enforce this latter contract would be contrary to public policy and would be therefore void. The wrongful act referred to in ; section 48 is, therefore, in this context clearly an act of negligence, or to put it more plainly, a want of ordinary, accepted, appropriate medical care. from an unconscious state. Both examples are so extreme as to be When these three rules are analysed as to their application in cases of terminal illness, it will be found readily that the exceptions grafted onto them allows a wide discretion to the treating doctor. To be guilty of murder, a person must intend, by what they do and by what they fail to do, to cause death and also i to be guilty of an unlawful act. 7 A person intends to cause death when they realise that their conduct, or the consequences of their conduct, will have that result. However the medical I profession uses the principle of double intention or double effect when they know that their action, or inaction, will 1.4 Murder, Manslaughter and Negligence in Palliative Care

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