| Introduction |
Appendices |
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| Legal Cases |
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Chapter 6 was concerned with the Ward case and the decision to permit the withdrawal of ANH and other life-sustaining treatment from a ‘near-PVS’ patient. However, the discussion was not concerned with the decision per se but with the grounds used by the courts to support the decision. The grounds used in a legal judgement are part of the conceptual framework within which the problem is placed and it was argued in Chapter 6 that the problem at the heart of the Ward case was capable of being understood and resolved by means of a number of different frameworks:
(i) as a problem concerned with medical treatment and the conditions under which it may be withdrawn,
(ii) as a problem concerned with the legal rules for assigning responsibility for the causing of death; or
(iii) as a problem concerned with the best use of scarce resources.
The English courts (in the Bland case) were faced with a problem similar to the Ward case: the withdrawal of ANH from Tony Bland who was in a PVS. The judgements in the Bland case - particularly those in the House of Lords - recognised that the most fitting resolution of the problem lay through a reformulation of the rules relating to the assignment of culpability for the causing of death; however, they believed that such a reformulation would require a revision of the law of so radical a nature as to be beyond their jurisdiction and to require the intervention of Parliament. Recognising that their decision was based on ‘narrow, legalistic, grounds which provide no satisfactory basis for the decision of cases which arise in the future’, [i] they reluctantly interpreted the problem as one of medical treatment and its withdrawal.
The judgements in the Ward case showed no such hesitation; they were unequivocal in their acceptance of a medical treatment framework and indeed, gave no indication of even being aware of alternative methods of analysing the problem.[ii]
Once the decision had been made to view the problem underlying the Ward case as being concerned with the withdrawing of medical treatment then certain preconditions had (for legal reasons) to be satisfied before the problem could be resolved by this method - it had to be accepted that:
(i) ANH is a ‘medical treatment’ rather than a ‘food’.
(ii) The consent of a patient is required for all, including life-sustaining, medical treatment.
(A corollary is that a patient can refuse all, even life-sustaining, medical treatment.)
(iii) A patient does not lose the right to refuse life-sustaining treatment by virtue of their incompetency.
The judgements in the Ward case upheld all of the above preconditions; they specified the rules as to who should make the decision to permit the withdrawal of life-sustaining treatment from an incompetent patient and they set out the criterion that should be used in the making of such decisions - i.e. the ‘best interests’ of the patient. The judgements also stated that the court’s decision engendered no 'slippery slope' which might lead to withdrawal of life-sustaining treatment in cases of disability; however, such assertions were more in the nature of avowals than reasoned arguments and bore little relation to the underlying rationale behind the decision; as such they are obiter dicta and not of binding authority in any subsequent case.
Chapter 7 considered the concept of ‘best interests’ as used in the Ward case and found that its explication required the use of the concept of ‘quality of life’. Two meanings of the term ‘quality of life’ were distinguished; medical judgements based on these different meanings were called ‘absolute quality of life’ judgements (which sought to measure the totality of a patient’s quality of life) and ‘incremental quality of life’ judgements (which sought to measure the change in a patient’s quality of life due to some proposed medical intervention). It was shown that ‘incremental quality of life’ judgements did not logically require the ability to make ‘absolute quality of life’ judgements and it was argued that, for ethical reasons, ‘absolute quality of life’ judgements should not be used. However, it was noted that the ‘best interests’ judgements, as used in the Ward and Bland cases, necessitated the making of ‘absolute quality of life’ judgements.
Chapter 8 considered the 'slippery slope' arguments and the possible use of the Ward decision to justify withdrawal of life-sustaining treatment in cases of severe disability. English legal developments in relation to the withdrawal of life-sustaining treatment in cases of disability (such as occurred in Re B and In re J)[iii] were examined and were shown not to require the use of any legal principle additional to those accepted in the Ward decision. The main legal principle needed for deciding such cases was that ‘absolute quality of life’ judgements are permissible in the making of medical treatment decisions and such judgements had been sanctioned by the Ward decision.
It was concluded that the Ward decision did create the danger of a 'slippery slope' and that this arose principally because:
(i) it sanctioned the use of ‘absolute quality of life’ judgements;
(ii) it allowed the withdrawal of ANH to be assimilated to normal treatment decisions especially in its insistence that the withdrawal of ANH did not cause the patient’s death;
(iii) its refusal (unlike the Bland court) to stipulate that application be made to the courts in future cases where the withdrawal of ANH was proposed.
It was argued that this was an abdication of responsibility and effectively removed the supervision of medical developments in this area from the courts.
The magnitude of the changes wrought in Irish law by the Ward decision is evidenced in the fact that recent BMA (1999) proposals which favour the widening of the categories where the withdrawal of ANH is permitted, to cases such as those of the ‘marginally aware’ and stroke victims, are more compatible with existing Irish law than with current English law. The conclusion to be drawn is that the Ward case did engender a 'slippery slope' - not by the decision per se but by the grounds used by the court in justifying its decision.
Could the danger of a 'slippery slope' be avoided if ‘absolute quality of life’ judgements were prohibited?
The short answer is yes and it is the task of Part 3 to show how this is so; however, without the use of ‘absolute quality of life’ judgements, the Medical Conceptual Framework is not sufficiently powerful to generate a solution and a new conceptual framework is required; this alternative framework is developed in Part 3 and is based on the concepts of ‘a good death’ and ‘personhood’.