This opinion will initially deal with
So how does one define a
right to die? and what
constitutes a competent patient?
In the Matter of a Ward of Court,[1] Hamilton CJ gave definition to the notion of a right to die by stating: ‘the process of dying is part, and an ultimate inevitable consequence, of life, the right to life necessarily implies the right to have nature take its course and to die a natural death and, unless the individual concerned so wishes, not to have life artificially maintained…..merely to prolong life…’[2] – the author posits that this could be viewed as a form of self-determination, that is our right to die is determined by our right to live.
With regards to what constitutes a competent patient, Thorpe J in Re C (adult: refusal of medical treatment)[3] stated a three stage competency test that comprises of the patients ability to: (1) take in and retain treatment information, (2) to believe it and (3) to weigh that information, balancing risks and needs – this test would aid in establishing a patient’s capacity or competency to decide on treatment (or not).[4]
The right to die in
Australia
In
This opinion is supportive of the view that a patient
who exercises their right to refuse treatment, is in effect exercising part of a
broader right to self-determination, which is a substantial part of what is
often meant by the term the right to die.[8]
In Schloendorf v Society of New York Hospital,[9]
Cardozo J stated: ‘every human being of adult years and sound mind has a right
to determine what shall be done with his own body; and a surgeon who performs an
operation without his patient’s consent commits an assault, for which he is
liable in damages…’.[10]
This right to self-determination has been recognised in
common law countries including the
In essence the right to refuse treatment becomes a right
to die when a patient refuses treatment that is necessary to support life. In
relation to competent patients, such a decision must be honoured regardless of
the reasons for such a decision,[15]
even when the decision may appear (for whatever the reason) to have been “badly”
made.[16]
In Re T (adult: refusal of medical treatment),[17]
Lord Donaldson MR succinctly stated: ‘this right of choice is not limited to
decisions which others might regard as sensible. It exists notwithstanding that
the reasons for making the choice are rational, irrational, unknown or even
non-existent’.[18]
Next week we will be discussing cases involving the
right of a patient to refuse treatment. This puts a slightly different angle on
the right to die argument as a person who chooses to refuse treatment is
indirectly exercising a right to die. These cases shed light on the fact that in
[1] [1995] 2 IRLM 401 (
[2] I. Kennedy & A. Grubb, op. cit., p.1907.
[3] [1994] 1 All ER 819 (Fam Div) (‘Re C’s Case’).
[4] I. Kennedy & A. Grubb, op. cit., pp.623-4.
[5] C. Stewart, “Advance Directives, The Right To Die and the Common Law: Recent Problems with Blood Transfusions”, (Vol.23 1999), MULR 161 at 183.
[6] Secretary of the Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 at 232-5 (‘Marion’s Case’).
[7] [1998] VSCA 45 (‘Qumsieh’s
Case’).
[8] C. Stewart, “Qumsieh’s Case, Civil Liability and the Right to Refuse Medical Treatment”, (Vol.8 2000), Journal of Law and Medicine 56 at 58.
[9] 105 NE 92, 93 (NY, 1914).
[10] C. Stewart, op. cit., 161 at 165.
[11] Perna v Pirozzi, 457 A 2d 431 (NJ, 1983).
[12] Airedale NHS Trust v Bland [1993] AC 789
(‘Airdale’s Case’);
[13] Nancy B v Hôtel-Dieu de Québec (1992) 86 DLR (4th) 385.
[14] Marion’s Case; in C. Stewart, op. cit., 161 at 165.
[15] C. Stewart, op. cit., 56 at 59.
[16] Sidaway v Govenors of Bethlem Royal Hospital [1985] AC 871 at 904-5.
[17] [1992] 4 All ER 649; (1992) 9 BMLR 46 (CA); and [1992] 2 Fam 458 at 460 (‘Re T’s Case’).
[18] C. Stewart, op. cit., 56 at 59.
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