ANALYSIS:Finely tuned legislation is needed in an ethical and legal minefield, writes CAROL COULTER
THERE HAVE been great advances in medical technology in recent years. While most have been welcome, some allow people to be kept alive with the aid of machines for very lengthy periods of time with no prospect of recovery, leaving relatives in an emotional limbo.
Such instances also place great pressures on medical resources.
This raises one of the issues in any debate on when and in what circumstances such treatment should be discontinued. Should the availability of resources play any part in the decision? Should the decision rest with the next of kin? And how should the person at the centre of the treatment have their own views heard?
The process of drawing up legislation in this sensitive area began over a year ago, with a consultation paper from the Law Reform Commission. This formed part of its 2008-2014 programme of law reform, which has been approved by the Oireachtas.
Advance care directives have been legislated for in a number of states, allowing people aged over 18 to specify what treatments they do not wish to have in the event of being incapacitated. There is no such legislation in Ireland.
Related issues arise when certain life-saving treatments run counter to a person’s wishes or religious convictions, as is the case with Jehovah’s Witnesses and blood transfusions.
The issue has been highlighted by a number of court cases in recent years. The first was the ward of court case, where a woman had been in a near persistent vegetative state for 24 years and her mother sought the permission of the courts to have the treatment and nutrition tubes withdrawn. Her wish was granted by the High Court and by the Supreme Court on appeal, whose judgment has provided the framework for situations since.
The most recent case to be considered by the courts was where a pregnant Congolese woman, who was a Jehovah’s Witness, refused a blood transfusion, though this was risking her own life and that of her baby. The High Court gave the hospital permission to overrule her wishes. The validity of this was subsequently challenged in the High Court, which upheld it on the grounds that the woman’s capacity to understand the gravity of her situation was impaired.
However, case law does not provide an answer to all these questions and in any case constant recourse to the courts is a very expensive and cumbersome way of dealing with the issue.
The LRC is recommending that refusal of treatment on religious grounds be permitted, on the assumption the person has the capacity to make such a decision.
There will inevitably be instances where the implementation of an advance care directive will conflict with the professional judgment or ethical beliefs of some healthcare professionals. The legislation will have to be very finely tuned to take account of all eventualities.