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. 22 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. 23 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. 24 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." 25 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. 26 Circumstances may exist where, on the postulated test, the interest of the I 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 j 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. 27 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. 28 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 j and a growing elderly population who are the most significant users of the j 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. 29 However futility is a different phenomenon to either rationing or cost containment. 30 A futile medical ! 3.2 Futility, Rationing and Cost Containment

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 31 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% 3.3 Practical Implications for Irish Medical Practice j So what of the legal situation where a j comatose patient in an Irish hospital is i being tube fed and infections, which j 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. 33 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. 34 The principle applied was that to treat a due to the expensive nature of labour intensive humane care at life's end. 32

; .support life which as well as considering privacy may also

i i

! 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 1 purpose of using limited resources to

32