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. 62 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. 61 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. 64 From this it can be seen that the life/death decision to be made is a medical decision subject to approval in some cases. 65 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. 66 This suggests a move towards the practice of Irish doctors, which has been welcomed by the American medical profession. 67 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. 6 " Certainly, any law must be difficult to apply; the treatment of the terminally ill is so inextricably a matter of medical 4.6 The Usefulness of Legal Rules

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

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." 71 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. 72 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. 71 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 74 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. 75 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. 76 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. 4.8 Difficulties to be considered in drawing up Advance Directives

i

on attitudes." 69

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?" 70 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: "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

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