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, j 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 j '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 j 'Omission and the Duty Myth' Criminal Law Essays 85; Williams 'What Should the Code do about Omissions?' (1987) 7 L.S. 92; and I 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. 4. R v Taktak [1988] 34 A.Crim. R. 334 CCA j 95 C.C.A.; Lowe [1973] QB 702. 6. 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 NSW. I 5. The People (A.G.) v Dunleavey [ 1948] IR J

context, the analysis by Lord Browne- Wilkinson in Avidale NHS Trust v 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 X v Federal Republic of Germany. 12. Appl. 19983/'82 R v United Kingdom. D & R 33 (1983) p.270 (271-272). 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 v 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 13. [1984]IR 36. 14. [1987]IR 587. 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 j 'Medical Futility: Its Meaning and Ethical Implications' (112 91990) Anals of Internal j 23. Kennedy I. 'Switching off Life Support Machines' [1977] Crim. L.R. 445. 24. Barber v Superior Court of Los Angeles County 147 Cal App. 3d 1006; 47 ALR 4th I. See also Greenspan, United States Law ! ! 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 Med. 949.

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 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', j Nov 22, 1986. For a summary of the Jewish I position see Dr A.S. Abraham Halachah i urefuah. Vol 2 189 and Igrot Moshe, Choshen mishpat, Vol 7; 73:2. 26. Mason and McCall-Smith'Butterworths j 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 I 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. i 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 v Bland [1993] 1 All E.R. 821 and Frenchay Healthcare NHS Trust v S [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. • also 'The Catholic Tradition on the use of Nutrition and Fluids' 'America' (1987) May i Annual Conference 1995 The Annual Conference 1995 will be held from 11 - 14 May, 1995 in the j Hotel Europe, Killarney, Co. Kerry. I The Hotel Europe, now under new i 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. Í The conference seminar which will be held on Friday 12 May is entitled I "Developing Your Business: j Finding and Minding New Clients". A varied programme of social and sporting events has been planned and j the weekend will culminate with the | gala conference banquet on Saturday | night. A brochure with booking form j will issue in early February. Book early to avoid disappointment. | • Í

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