The Gazette 1995

GAZETTE

JANUARY/FEBRUARY 1995

The Law at Life's End

j by Peter Charleton, Barrister & Marguerite Bolger, Barrister

Part I*

"The most difficult but the most essential thing is to love life, to love it even when one suffers - because life is all." Tolstoy 1 Life clings to itself, dying is not easy and were it to be so there may well have emerged situations in human history when the species could have been threatened had it not had built into it an extreme resilience to deprivation and accident. But, nature has also provided a point beyond which the human organism ceases to function. It is with the development of modern medical technology that the chance of extending life beyond its natural compass has emerged. The possibility of skill being exercised to save life has allowed lawyers a ready opportunity, particularly in the United States, to create a climate of fear whereby what is, and what should be, the natural course of life ending in death is extended or deflected in order to buy off the possibility of litigation. It is the lawyer's art to use blunt legal rules to achieve a result. Often these rules are set at odds with one another with a view to achieving a situation where what common sense would have dictated in the first instance can be allowed to prevail. Law is simply an instrument whereby people can express a view as to what they think is a good idea in a particular l situation at a particular time. Human experience cannot encompass all situations and legal rules are, for that reason alone, defective. But, these defective rules are already with us and thus must be examined in ! the context of potential legal liability i for medical action, or inaction, at life-end.

Peter Charleton

Marguerite Bolger

carers, or in some cases, by application to the court.

1. CRIMINAL AND CIVIL LAW

1.1 Murder

1.2

Manslaughter

It is the criminal offence of murder to kill another person by creating, whether by act or omission, any state of affairs which makes a substantial contribution to their death, intending while doing this to cause death or serious injury. 2 Where a person is under a legally imposed duty of care, an omission to act can be murder or manslaughter. 1 The duty to act arises out of those complex relations of human society which create correlative rights and duties the performance of which is so necessary to the good order and well-being of society that the State makes their observance obligatory. 4 There is no doubt that one of those relationships which the law enforces is that of doctor and patient. Consequently, a doctor who takes a patient under his/her care, is obliged to take all possible steps to guard the ' patient's well-being. What is possible is, however, to be judged by reference to existing good medical practice and is not, therefore, absolute. The well being of a patient is a variable factor to be decided by the patient in the exercise of personal autonomy. In cases of the patient being insensate the paramountcy of his or her interests continue but now fall to be decided by

Any act or omission which makes a substantial contribution to the death of a person is manslaughter if the action in question, or the failure to do that act, falls short of that ordinary and necessary care expected in the particular circumstances, to the degree that there exists negligence in a very high degree which can be shown to have brought about a very high degree of risk of substantial personal injury to the patient. 5 A doctor is obliged to exercise that degree of care and skill that will ensure that his actions do not cause harm to a patient, but is also governed by an exceptional rule which indicates that no medical practitioner will be found guilty of negligence unless there has been no other practitioner of equal specialist or general status and skill who would have taken the action or made the judgment he or she did, acting with the ordinary care required of a person with his qualifications. 6 This means that to establish liability for manslaughter there must exist criminal negligence. Only in the most

exceptional circumstances will following an accepted medical