The Gazette 1995

GAZETTE

M EDIWH MARCH1995

4. Neither can it be assumed that a doctor can make a decision alone as it would seem that they are more willing than either family or patients to withdraw treatment. 77 It has been suggested that fit young doctors do not appreciate the positive aspects of apparently less independent elderly patients. 7,1 Most disturbing of all is an indication of a high degree of willingness on the part of the medical profession to ignore living wills altogether, in one international study 40% of doctors said they would have treated the patient in a manner inconsistent with their stated requests. 79 In consideration of these limitations and difficulties of living wills, it may be that some form of judicial forum could serve a purpose in balancing the rights, the needs and the concerns of patient, family and doctor. However even in spite of inevitable difficulties, there is evidence to show the benefits in practice of living wills. 80 This must suggest a greater move towards the medical attitudes envisaged by Kjellstrand: "Physicians need to teach themselves to recognise better the shadow lines between prolonging life and prolonging dying and to understand that death should be a human act of dignity and not a prolonged mechanical failure that can be fixed with even more technology." 81 People should not be kept alive against their wishes except where that wish conflicts with obvious prospects for recovery. Recovery should be effected where it is reasonably possible in the context of a return to something approaching health. To do otherwise tends towards the doctor allowing himself to be the instrument of fulfiling a death wish. As in nature, as prospects for recovery diminish, either by reason of age or illness, less extreme steps are required to fulfil the duty to protect life. There comes a point at which the course of nature will be so deflected and the obvious and common sense right of a person to 5. CONCLUSIONS

die in peace will be so intruded upon, that further treatment constitutes in itself a wrongful act, an offence against life itself. In approaching the problems associated with those too ill to exercise autonomy the principles of asking what treatment, or lack of it, is in the patients' best interests offers at least a challenge to humility. It seems senseless, and perhaps is also legally wrong, to continue treatment on an insensate patient where no rational autonomous being would chose life- prolonging measures. In that context biological life is not all, stripped as it is of all the attributes of consciousness and of dignity. legislatures can be guaranteed to have perfect wisdom. Whatever way the problems are worked out one hopes that the current practical attitude of the majority of the medical profession in Ireland will not be intruded upon by those with less knowledge. It is to be hoped that Irish lawyers do not show the same enthusiasm as their American colleagues for venturing into the area of life-end, as, to quote George Elliot: "Legal training only makes a man more incompetent in questions that require knowledge of another kind". 82 The problem is that neither patients, their next of kin, lawyers or *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 Hqspitals on Saturday the 11 June 1994. The paper was then extensively revised by the second author. Part I was published in the Jan/Feb 1995 issue at P.29

not in accord with the recorded, sustained wishes of the patient who is mentally competent, (c) Where successful CPR is likely to be followed by a length and quality of life which would not be acceptable to the patient. 36. Torian et al 'Decisions for and against Canadian hospitals is Molloy and Mepham 'Let Me Decide' (1989) which, in its 46 pages, contains clear explanations of treatment options, convenient pull-out forms and a completed sample Directive. 529 A.2d 434(NTJ. 1987). 39. Relman A.S. 'The Saikewicz decision: judges as physicians' N Engl J Med 298 ( 1 9 7 8 ) 5 0 8. 40. Dr. Rothman, writing in the June 1987 edition of 'Neurology'; cited in Costello J. loc. cit. 41. Barber v Superior Court of Los Angeles County 147 Cal App. 3d 1006; 47 ALR 4th I. 42. R v Cox, see The Independent, 10 September 1992; R v Adams [1967] Crim. L.R. 365. 43. In the matter of Karen Quintan (NJ) 355 A2d 647; 97 ALR 3d 205. 44. In re O'Connor 72 N. Y. 2d 517, 531 N.E. 2d 607, 534 N.Y.S. 2d 886 (1988); Cruzan v Harmon 760 S.W. 2d 408 (1988). 45. Kjellstrand C.M. 'Who Should Decide About Your Death?' JAMA 267(1992)103. 46. Mass App 376 NE2d 1232; 93 ALR 3d 59. 47. Kennedy I 'The Legal Effect of Requests by the Terminally ill and Aged not to receive further Treatment from Doctors' [1976] Crim. L.R. 217. See Airedale NHS Trust v Bland [1993] 1 All E.R. 821 at 860 and F v West Berkshire Health Authority [1989] 2 All E.R. 545. 50. Suicide Act 1961 section 2. 51. Istan [1893] 1 Q.B. 450. Both possibilities are dismissed by Kennedy, loc. cit., as invalid justification for ignoring the request of the patient that treatment be discontinued. 52. See generally Zellick G. 'The forcible / feeding of prisoners: An examination of the legality of enforced therapy' [1976] Public Law 153. 53. Dr. Charles Smith; personal communication. 54. On both cases see generally Lo et al 'Family Decision Making on Trial' 322( 1992) N Engl J Med 1228. 55. Annas G.J. 'Precatory prediction and mindless mimicry: the case of Mary O'Connor.' Hastings Cent Rep 18(1988)31. 56. Lo et al loc. cit. 57. Schgal et al 'How Strictly do Dialysis Patients want their Advance Directives followed?' JAMA 267(1992)59. 58. (NJ) 355 A2d 647; 97 ALR 3d 205. See generally Costello J 'The Terminally 111 - The Law's Concerns' (1986) Irish Jurist. 59. See Costello loc. cit. 60. Superintendent v Saikewicz 373 Mass. 728. 38. In re Jobes 48. Williams,'Euthanasia'41 Medico-legal Journal 14, 24. 49. Kennedy I. loc. cit. at 221-223 where he says this undermines the patient's self- determination, which is the last right remaining for the terminally ill or the aged. Resuscitation in an Acute Geriatric Medical Unit' 152 (1992) Arch. Intern. Med. 561. 37. A common such booklet distributed in

References

35. The March 1993 bulletin of the British

Medical Association and the Royal College of Nursing indicates that it is appropriate to consider a DNR decision in the following circumstances: (a) Where the patient's condition indicates that effective CPR is unlikely to be successful, (b) Where CPR is

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