Posted in New Legal Developments on 12 March 2014

When issues of ill-health and the law intersect, the matter is inevitably fraught with complexity, emotion and sadness.

In recent years a number of high-profile complex and sensitive medico-legal issues have arisen in Irish Courts.  Most recently the issues of patient autonomy and consent were brought into sharp focus by the sad passing of Marie Fleming, following her unsuccessful battle for a right to die by assisted suicide.

It raises the question, when is a patient is allowed to refuse life-saving medical treatment?    

It appears that a competent adult can refuse a blood transfusion, can choose to stop chemotherapy and can make informed choices about their medical treatment.  On the other hand that same adult cannot demand a certain type of treatment under the public system, cannot choose to have a homebirth if deemed high-risk at the expense of the HSE and most significantly cannot choose to die by assisted suicide. 

Where is the consistency?  What is the law? 

Put simply, any medical procedure for a competent adult requires their consent.[1]  In the absence of consent, medics can rely on necessity in limited emergency situations, for example following a road traffic accident.

The concept of autonomy was first recognised in 1914 by a Mr. Justice Cardozo in the US.[2]  The basic premise is that every adult of sound mind is entitled to make their own decisions about what happens to their own body.

In Ireland autonomy has a constitutional basis in that the Irish courts recognise the constitutional unenumerated right to bodily integrity.  From this, the right to autonomy is said to flow.  Irish courts accept a patient’s right of autonomy, but they qualify that right, stating that it is not absolute and that the preservation of life can constitute an exceptional circumstance. 

In Re A Ward Of Court [1996] 2 IR 79, the Irish Supreme Court upheld the right to refuse treatment, even if such a refusal can lead to death.  In this instance the mother of a lady in a near persistent vegetative state was allowed to order the cessation of nutrition and hydration.

More recently, a seven judge Irish Supreme Court dismissed Marie Fleming’s appeal of the High Court decision, and held that there is no explicit right to die by assisted suicide, Marie Fleming v Ireland, Attorney General and the Director of Public Prosecutions [2013] IESC 19.  While the State is obligated to protect the right to life, the Supreme Court made clear that the right to life (as the law stands in Ireland) does not extend to a right to die or to have one’s life terminated by active measures. 

Echoing the legislative provisions, the relevant Irish Medical Council Guidelines state that a doctor “should respect the right of patients to refuse medical treatment or to request the withdrawal of medical treatment”.  They must respect that decision even if they disagree.  However, it makes clear that a doctor “must not participate in the deliberate killing of a patient by active means”.[3]

Thus, to clarify, a crucial distinction remains; Omission versus Commission.

Omission of treatment is permitted.  It is seen as a passive act, for example discontinuing a life saving treatment ranging from resuscitation to medication, blood products or fluids and letting nature take its course as occurred In Re a Ward of Court.

Commission on the other hand is an active, positive step to end a life i.e. the administration of medication to stop a patient’s heart.  This is not permitted under Irish law.

The line between the two appears blurred, but it is a distinction on which the courts rely and one which the Supreme Court judgment in the Marie Fleming case reiterated.

In 2001, a lady called Diane Pretty brought her challenge regarding the lack of provision for assisted suicide in the UK to the European Court of Human Rights.[4]  To date, the ECHR have refused to acknowledge that the European Convention on Human Rights provides a right to die by assisted suicide.  They have left it to individual Member States’ discretion to enact their own legislation.

The Supreme Court has made clear that the Oireachtas is free to legislate for assisted suicide in certain situations.  It remains to be seen whether they will attempt to enact such a divisive and emotional law.

For now, in Ireland, a patient is entitled to refuse a blood transfusion or life-saving surgery, regardless of how detrimental the consequences and regardless of how irrational or upsetting it may seem to onlookers, healthcare professionals, family and friends.   However patient autonomy has a limit.  The words of Chief Justice Hamilton In Re A Ward of Court, still apply, No person has the right to terminate or to have terminated his or her life, or to accelerate or have accelerated his or her death”.[5]

Contact us at Cantillons Solicitors at +353 (0)21 -4275673 or info@cantillons.com if you would like more information.

* In contentious business, a solicitor may not calculate fees or other charges as a percentage of any award or settlement.

 

[1] This discussion is confined to decisions made by competent adults. Issues of capacity of adults and refusal on behalf of a minor or intellectually impaired individual are outside the scope of this discussion.

[2] Schloendorff v Society of New York Hospitals (1914) 211 NY 125

[3] Irish Medical Council. Guidelines for Professional Conduct & Ethics for Registered Medical Practitioners. (7th Ed 2009) http://www.medicalcouncil.ie/Registration/Guide-to-Professional-Conduct-and-Behaviour-for-Registered-Medical-Practitioners.pdf at paragraphs 22.3 and 22.6.

[4] Pretty v the UK [2002] 35 EHRR 1.

[5] Re A Ward Of Court [1996] 2 IR 79 at 405.


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