The Gazette 1995

GAZETTE

NEWS JANUARY/FEBRUARY 1995

j right to die without futile or unwanted ! medical intervention. The right to privacy was first located in the Í Constitution by the Supreme Court in Norris v AG". O'Higgins CJ and McCarthy J postulated it as "a right to I be let alone" echoing the US Supreme | Court in a line of cases on the issue. Whilst all five judges recognised the right to privacy in the Constitution, the majority held that it did not cover the plaintiff as he wished to participate in conduct which was morally wrong, thus going beyond the parameters of a right to privacy which they proclaimed ' was not absolute. In a dissenting 1 judgment, Henchy J pointed out that | the right may be claimed "for purposes not always necessarily moral or commendable, but meriting recognition in circumstances which I do not endanger considerations such as State security, public order or morality, or other essential j components of the common good." Whether a patient's or their family's wish to cease medical treatment could be considered contrary to the common I good remains to be seen. It would appear from US and UK caselaw that, depending on the circumstances, permitting withdrawal of treatment might not cause legal conflict. The right to privacy was actually invoked for the first time in Kennedy v j Ireland 14 where Hamilton P reiterated ! the Supreme Court's earlier analysis of j the qualified right to be left alone. Support for the right to be left alone to die in peace can be found in his judgment: "The nature of the right to privacy must be such as to ensure the dignity and freedom of an individual in the

court expressly held that exercise of this constitutional right did not involve any breach of the criminal law as termination of treatment pursuant to a ' right of privacy was by that fact alone J lawful; a death resulting from such an J act could not be regarded as an : unlawful one. The same right to ; privacy also placed Mrs Cadura's right to refuse treatment on a constitutional level. 17 Writing extrajudicially (in 1986 prior I to the Kennedy decision which successfully invoked the right to privacy in the Irish High Court), having considered the relevant US i caselaw, Mr Justice Costello said: "[Tjhere are very powerful arguments to suggest that the dignity and autonomy of the human person decisions relating to life and death are generally speaking ones which a competent adult should be free to make without outside restraint and that this freedom should be regarded as an aspect of the right to privacy which should be protected as a 'personal' right by Article 40(3)(1)... [I]t is highly probable that the courts would conclude that the duty to respect the dignity of each individual which the Constitution imposes is one which exists as long as the human person is alive. The comatose patient would, like the terminally ill competent patient, have a correlative constitutional right to respect. It would seem reasonable to conclude that inherent in this right to which both would have an entitlement would be a right to die with dignity." 18 (as constitutionally predicated) require the State to recognise that | 2.2 The State's Constitutional Duty to Preserve Life No constitutional right is unlimited. The Constitution guarantees the right to life. The guarantee is in absolute ; terms and that means that the State, ! through its laws or agents, is not entitled to interfere with that right. The [ State, under the Constitution, correspondingly takes on a duty to uphold the right to life which may involve protecting it from private attack. An example might be a duty to í

| legislate to outlaw a suicide manual, j That duty is far more limited and is expressed in the Constitution as to "protect as best it may" 19 . Í The interest of the State in preserving life was discussed by the court in the Quintan case. Hughes C.J., in a classic dictum, said: "We think that the State's interest contra weakens and an individual's right to privacy grows as the degree of bodily invasion increases and the prognosis dims. Ultimately, there comes a point at which the individual's rights overcome the State interest". 20 The principle identified by the court can be seen in the current medical j practice in this jurisdiction. A person who is terminally ill is entitled to make a decision that they should not be given further life support. Where the patient is unconscious the next-of- kin, in consultation with their physician, are entitled to reach the same decision. The more extreme the condition in which a patient is to be : found, the easier it is to resolve a dilemma in favour of non-treatment. As life slips away, the interest of the State in preserving it weakens in favour of the individual's right to be left alone. Just as a competent and conscious patient has the right to refuse medical treatment, so too has a terminally ill patient the right to be protected from an unnatural intrusion j involved requires that the State's interest in preserving life weakens and < the individual's right to privacy grows . í as the degree of bodily invasion I increases and the prognosis for 1 recovery dims. into the course that nature has chosen for him. The principle

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type of society envisaged by the Constitution, namely, a sovereign,

I 3. FUTILE FEEDING OR TREATMENT OF A ; COMATOSE PATIENT I i | 3.1 Futile Medical Care

Í independent and democratic society."

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The Irish courts' reasoning is echoed in US caselaw. 15 In Quintan's case 16 the Supreme Court of New Jersey decided that the constitutional right to privacy encompassed a patient's decision to decline medical treatment in certain circumstances which outweighed the state's interest in preserving life. The

| It was never intended that the medical profession should administer non- beneficial care. 21 From this premise | emerges the principle that comatose patients should not be given futile medical treatment. A proposed

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