The Gazette 1995

GAZETTE

M EDIWH MARCH1995

wishes, even competent patients have had to go to court in order to decline life saving treatment. In Lane v Cadura 46 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." 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. 47 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." 48 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 49 , aiding and abetting a suicide 30 or of neglect 31 . 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 This right to self-determination would also appear to exist in UK law.

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. 37 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. In contrast to O'Connor and Cruzan the Supreme Court of New Jersey in the Quinlan case 38 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. 39 A Massachusetts 60 and New York 61 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 4.5 Possible Procedures for Resolution of a Conflict over Chosen Death

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. 32 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. 31 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 34 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 33 . 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. 36 In addition, requiring such clear instructions from a patient without any flexible intervention by their family might not, 4.4 Can comments made in the past constitute an Advance Directive?

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