Introduction

Part 2

Part 3

Appendices

Part 1

Introduction to Part 2

Introduction to Part 3

     Appendix A

Introduction to Part 1

     Chapter 6

     Chapter 9

     Appendix B

     Chapter 1

     Chapter 7

     Chapter 10

     Appendix C

     Chapter 2

     Chapter 8

     Chapter 11

     Appendix D

     Chapter 3

Conclusions to Part 2

Thesis Conclusions

     Appendix E

     Chapter 4

     Appendix F

     Chapter 5

Bibliography

Conclusions to Part 1

Books and Articles

Legal Cases

 

Part 2: Introduction[i]

 

 

“ ‘There is a strident cry in America to terminate the lives of other people - deemed physically or mentally defective ... Assuredly one test of civilization is its concern with the survival of the 'unfittest', a reversal of Darwin’s formulation ... In this case the court must decide what its ward would choose, if he were in a position to make a sound judgement.’ [ii]

This last sentence puts it right.  It is not appropriate for an external decision maker to apply his standards of what constitutes a liveable life and exercise the right to impose death if that standard is not met in his estimation.  The decision can only be made in the context of the disabled person viewing the worthwhileness or otherwise of his life in its own context as a disabled person - and in that context he would not compare his life with that of a person enjoying normal advantages.  He would know nothing of a normal person’s life never having experienced it.” [iii]

 

In the Ward case[iv] the Irish courts were presented with an application by the family of a woman who had been in a ‘near-PVS’ state for over twenty years, seeking that she be ‘allowed’[v] to die.  There was no statutory provision, nor no judicial precedent, in Irish law to help resolve such a problem; however the Irish courts were able to draw on the experience of the US courts (in the Cruzan case[vi]) and the English courts (in the Bland case[vii]) both of which had considered similar problems involving PVS patients.  The US and the English courts considered these cases as being essentially concerned with the withdrawal of life-sustaining medical treatment; they had resolved these cases by first delineating the conditions under which medical treatment might be given to, or withdrawn from, patients who lacked the capacity to consent to such treatment and by then applying this analysis to the particular situation of the PVS patient.  The Irish courts adopted a similar method of analysis.

The aim of Part 2 of this thesis is to show that the method of analysis chosen by the Ward court[viii] to justify the decision to permit the withdrawal of life-saving treatment from a patient who was not terminally ill,[ix] entails that that decision can be applied to the situation of individuals who are not in a persistent vegetative state[x] but who are seriously disabled.  The English courts, by using a line of argument essentially the same as that adopted in the Ward case, have in a series of decisions, sanctioned just such a development.  These cases - some of which pre-dated the Bland decision and were used in its support - concerned the withholding of life-sustaining treatment from disabled individuals (mainly children) who were not terminally ill.  The nature and extent of the disabilities differed and ranged from very severe disability (In re J [xi]) to the case of a Down Syndrome infant with an easily curable intestinal blockage (Re B [xii]).  In many of these cases the courts have sanctioned the withdrawal of treatment, though in Re B the situation was more complex.[xiii]  I wish to use these two cases - In re J and Re B - as paradigms of the extremes of the disability spectrum and keep them as points of reference for the development of the argument in this thesis.

Against the suggestion that the Ward decision can be applied to cases of disability is the explicit statement by Hamilton CJ., that:

“ ... my ruling in this matter will be based on and relate only to the circumstances and rights of this particular ward.” [xiv]

Furthermore, there are many statements in the Ward judgements to the effect that the decision has no application to cases of disability; O’Flaherty J., for example, states:

“Thus, the circumstances of the current case are clearly distinguishable from the position as regards, for example, a seriously mentally handicapped person.  A mentally handicapped person is conscious of his or her situation and is capable of obtaining pleasure and enjoyment from life.” [xv]

Yet it was accepted that the Ward had some awareness: “ ... this is not a case of no cognitive function.” [xvi]  Indeed, the existence of such awareness itself became a reason for the withdrawal of treatment in the judgement of Lynch J. :

“ ... but if such minimal cognition as she has includes an inkling of her catastrophic condition, then I am satisfied that that would be a terrible torment to her and her situation would be worse that if she were fully P.V.S..” [xvii]

How then is the Ward case to be distinguished from cases of severe disability?

This question has both a philosophical aspect and a legal aspect.

Philosophically, the problem is to isolate the principles used by the court to justify its decision in the Ward case and then to see whether there is some feature present in cases of disability - but not in cases of PVS (or ‘near PVS’) - which would preclude the application of these same principles to cases of disability.  Such a feature must, of course, be considered ‘relevant’ to the application of the principles; however, the very use of the term ‘relevant’ shows that our analysis cannot be restricted to a simple search for some explanatory principle but must dig deeper.  This is because a proposition - or principle - cannot be understood in isolation from the context or background into which it is embedded and from which it draws its meaning: an objection only has ‘relevance’ in a particular context.  The term ‘conceptual structure ‘ was used in the introduction to this thesis to describe just such a system of concepts and their interlinking propositions within which a problem is placed.  Thus, viewed from a philosophical perspective, the problem is to make explicit the conceptual structure used in the Ward case; to show what parts of this conceptual structure were used to justify the decision and to see whether this conceptual structure permits cases of PVS, or ‘near PVS’, to be distinguished from cases of disability. 

The legal aspect of the problem relates to the question of whether there are peculiarly legal grounds for asserting that the Ward decision has no application to cases of disability.  Under the doctrine of precedent[xviii] not everything said in a court decision is binding on subsequent cases but only those aspects of the decision which were necessary in the making of the decision; these propositions and the decision itself are called the ‘ratio decidendi’ [xix] of the case; statements in a judgement which are not part of the ratio are not binding in subsequent cases; such statements are called ‘obiter dicta’.[xx]  Returning to the statements by Hamilton CJ., and O’Flaherty J. quoted at the beginning of this introduction, it is clear that they were not logically necessary to the decision in the Ward case.  Though they may have persuasive value, they are not binding in subsequent cases.  Hence, they cannot be taken as definitively excluding the application of the ratio in the Ward case to cases of disability.  However, were a case concerning the withdrawal of life-saving treatment from a disabled individual to come before the Irish courts, then clearly, constitutional arguments might be advanced against such a withdrawal different to or more persuasive than those that were advanced in the Ward case; the existence and cogency of such possible arguments require a legal analysis and are not the concern of this thesis whose focus in Part 2 is on an examination of the philosophical argument used in the Ward decision to see whether it permits cases of disability to be distinguished from cases of PVS.

____________

Part 2 is divided into three chapters.  Chapter 6 examines the conceptual structures which were used by the courts in the Ward and Bland cases and in some subsequent English cases dealing with PVS.  It is argued that the conceptual structure adopted by the courts - defining tube feeding as a medical treatment, thus reducing the problem to one of delineating the conditions necessary for the withdrawal of medical treatment - necessitated the acceptance of ‘best interests’ as being the appropriate standard for decisions to withdraw ANH.

Chapter 7 argues that the concept of ‘best interests’ depends on that of ‘quality of life’; it distinguishes between two uses of the concept of ‘quality of life’ - which it calls ‘incremental quality of life’ and ‘absolute quality of life’ - and argues that ‘incremental quality of life’ judgements do not depend on there being a possibility of making of ‘absolute quality of life’ judgements.  It suggests that ‘absolute quality of life’ judgements are crucial to the conceptual structure adopted in the Ward case,[xxi] and moreover that the danger of a ‘slippery slope’ [xxii] is occasioned primarily by its reliance on such judgements; it concludes that such judgements should, for ethical reasons, be avoided.  This conclusion does not affect the use of ‘incremental quality of life’ judgements. 

Chapter 8 considers the 'slippery slope' argument itself, and the question of whether the Ward decision engendered a 'slippery slope'.

The arguments set out in Part 2 are not an attack on the Ward decision as such but on the conceptual structure upon which it was based.  There are other conceptual structures which could have been used to justify the Ward decision without incurring the danger of a ‘slippery slope’ such as might lead to the withdrawal of life-saving treatment in cases such as Re B.  One such alternative conceptual structure is set out in Part 3, it enables a clear distinction to be made between on the one hand, cases of PVS or very severe disability such as found in anencephaly or in In re J, and on the other hand cases of Down Syndrome such as is found in Re B.  The conceptual structure used in the Ward decision was such that cases of PVS, ‘near-PVS’, anencephaly, severe disability and mild disability are all placed on the same continuum, differing only in degree.


 



[i] Summaries of the more important legal cases discussed in Part 2, are given in Appendix C.

[ii] Ashe J. in Re Weberlist:((1974) 360 NYS 2d 783 at 787.

[iii] McKenzie J. in Re Superintendent of family and Dawson (Appendix C - number 15).  This passage was cited (at p.936) by Lord Donaldson in Re J (Appendix C - number 10) who commented:

“This gives effect, as it should, to the fact that even very severely handicapped people find a quality of life rewarding which to the unhandicapped may seem manifestly intolerable.” (at p.938)

[iv] The judgement of the High Court is an unreported judgement of Lynch J. delivered on 15th May 1995.  The judgements of the Supreme Court is reported as In the Matter of a Ward of Court [1995] 2 ILRM 401. 

[v] The term ‘allow’ appears to have become traditional in this situation suggesting as it does a causal link to, but an absence of moral responsibility for, the inevitable consequences of the withdrawal of sustenance; the language mirrors the distinction between acts which are ‘directly intended’ in contrast to those ‘indirectly intended’ which are regarded as carrying a lesser, or indeed no, burden of moral responsibility.  Some dispute the existence of a causal link:

“The true cause of the ward’s death will not be the withdrawal of such nourishment but the injuries which she sustained ... ”  [The Ward case, Hamilton CJ., at p.429]

However, others regard such reasoning as pure sophistry amounting to evasion of the central issue.  Lord Mustill, for example, in his judgement in the Bland case - having noted the suggestion that the death will not be caused by the implementation of the proposed course of action - continued:

“I am bound to say that the argument seems to me to require not manipulation of the law so much as its application in an entirely new and illogical way.  In one from the argument presented ... asserts that the cause of Anthony Bland’s death ... will be the Hillsborough disaster ... it is in my judgement perfectly obvious that the conduct will be, as it is intended to be, the cause of death ... ” [Airedale N.H.S. Trust v Bland [1993] A.C. 789 per Lord Mustill p.895].

Thomas J., in Auckland Area Health Board v AG (Appendix C - number 17) proposed a novel solution arguing that although the doctors in withdrawing life-sustaining treatment might be said to cause the death of the patient they did not ‘legally cause’ his death.

[vi] Cruzan v Director, Missouri Department of Health (1990) 110 S Ct 2841.

[vii] Airedale N.H.S. Trust v Bland [1993] A.C. 789; see Appendix C - number 2.

[viii] I use the phrase ‘the Ward court’ to cover the judgements of all of the courts that dealt with the Ward case, similarly with the phrase ‘the Bland court’.

[ix] pace Hamilton CJ., who was the only member of the court to hold that the Ward was ‘terminally ill’; his reasoning is unconvincing:

“It is quite clear from the evidence that, without the benefit of the nourishment provided by the treatment being afforded to her she would die within a short period of time and in this regard, she must be regarded as ‘terminally ill’.”

(The Ward case, at p.428)

[x] or who are not - as in the Ward case - in a ‘near PVS’.

[xi] Appendix C - number 10.

‘J’ was an 18 week-old baby who had been born prematurely with very severe, and irreparable, brain damage.  He was epileptic and was likely to develop serious spastic quadriplegia and to be blind and deaf.  Though he may have become able to make sounds to reflect his mood and to smile and cry, he was unlikely ever to speak or develop even limited intellectual abilities.  It was likely that he would feel pain similar to a normal baby.  He was not terminally ill.  His life expectancy was uncertain but he was expected to die before late adolescence.  He had been ventilated twice for long periods, and the prognosis was that, in the absence of ventilation, any further collapse would be fatal.

[xii] Appendix C - number 7.

The case concerned a week old baby girl who had been born with Down Syndrome. The child had an intestinal blockage which could be cured, without difficulty, by a simple operation; her life expectancy would then be 20 to 30 years.  The child would die in a matter of days without the operation.  The child’s parents refused consent for the operation believing it not to be in the child’s best interests that she should survive because she would be handicapped both mentally and physically.

[xiii] At first instance the court agreed to treatment being withheld; this decision was subsequently reversed by the same court and the reversal upheld by the Court of Appeal on the grounds that the issue to be considered was not whether the parent’s wishes should be respected, but whether the withdrawal was in the ‘best interests’ of the child.  However, this distinction seems to have been blurred by the subsequent case of T (a minor) [Appendix C - number 12] where the Court of Appeal held that the judge at first instance should not have restricted himself solely to medical factors when judging the child’s ‘best interests’; he “... should have considered whether it was in the child’s ‘best interests’ that the mother should be forced to take on the commitment of caring for a child after surgery with which she did not agree.  The decision should be taken by the child’s parents as the child had been ‘entrusted by nature’ to their care.

In the Ward case counsel for the Attorney General (referring to Re B) submitted that "... the case uniquely illustrates why the quality of life should not be adopted as a test." (The Ward case at p. 401)  None of the judgements in the Ward Case give any detailed consideration to the decision in Re B.

[xiv] op.cit. p.423.

[xv] ibid.

[xvi] op.cit. per Egan J., p.437.

[xvii] The Ward case p.8; per Lynch J..

[xviii] P. G. Osborn. A Concise Law Dictionary London: Sweet and Maxwell, (1964), p.248:

Precedent: A judgement or decision of a court of law cited as an authority for deciding a similar set of facts; a case which serves as an authority for the legal principle embodied in its decision. The common law has developed by broadening down from precedent to precedent.  A case is only an authority for what it actually decides.”

[xix] ibid. p.267:

Ratio Decidendi: [The reason (or ground) of a judicial decision.]  It is the ratio decidendi of a case which makes the decision a binding precedent for the future.  However, the ground of a decision is the material facts of the case, so that if a similar or comparable set of facts come before the court again, so that a new case is on ‘all fours’ with an earlier case, the court will follow and apply the decision in the earlier case.”

[xx] ibid. p. 227:

Obiter dictum: [A saying by the way.]  An observation by a judge on a legal question suggested by the case before him, but not arising in such a manner as to require decision.  It is therefore not binding as a precedent.  But there is no justification for regarding as obiter dictum a reason given by a judge for his decision because he has given another reason also.”

[xxi] in the sense that, without this concept, the conceptual structure of treatment withdrawal would not have been sufficiently powerful to resolve the Ward case.

[xxii] To argue against a proposal on the grounds of the undesirable consequences which are said to necessarily flow from it rather than on the merits of the proposal per se is known in philosophy, as the sorites or ‘slippery slope’ argument; in short, it asserts that a proposal is ‘the thin end of the wedge’ inevitably leading to unacceptable consequences.  See: David Lamb, Down the Slippery Slope: Arguing in Applied Ethics, (1988).