A 

Abortion
Accounting
Advertising
Africa
African-American Studies
Aging
Agriculture
American Indian Studies
Anthropology
Archaeology
Architecture
Argumentative
Art: Artists (Alphabetized)
Art: General
Become an Affiliate and Earn $$$
Biographies (Alphabetized)
Book Reviews (Non-Fiction) (Alphabetized)
Business: Companies (Alphabetized)
Business: General
Business: Industries (Alphabetized)
Business: International
Business: Small
California
Canada
Caribbean
Child Abuse
China
Communication: Journalism
Communication: Language & Speech
Communication: Media
Communication: Non-Verbal
Communication: Television
Communication: Television & Children
Communism
Computer Science
Consumerism
Criminal Justice: General
Criminal Justice: Juvenile Delinquency
Criminal Justice: Police Science
Criminal Justice: Prisons
Cuba
Death & Dying: Euthanasia
Death & Dying: General
Death & Dying: Suicide
Drama: American
Drama: English
Drama: World
Drugs: Alcohol
Drugs: General
Economics: Banking
Economics: Economists (Alphabetized)
Economics: General
Economics: Inflation
Economics: International Trade
Economics: Macroeconomics
Economics: Microeconomics
Economics: Taxation
Education: Administration
Education: Curriculum
Education: General
Education: Higher
Education: Physical
Education: Psychology
Education: Reading
Education: Special
Education: Teaching Methods
Education: Theory
Energy: General
Energy: Nuclear
Energy: Solar
Environmental Studies
Evolution
Family & Marriage
Films: Artists (Alphabetized)
Films: General
Finance: Companies (Alphabetized)
Finance: General
Former Soviet Union: Post-1990
France
Gender & Sexuality
Geography
Germany
History: Ancient Greek & Roman
History: European
History: Great Britain
History: U.S. (After 1865)
History: U.S. (Before 1865)
History: U.S. Presidency
History: U.S. Presidents (Alphabetized)
Homosexuality
Immigration
India
Indonesia
International Relations: Arms Control
International Relations: Cold War
International Relations: Non-U.S.
International Relations: U.S.
Japan
Jewish Studies
Korea
Labor
Latin America
Law: Business
Law: Capital Punishment
Law: General
Law: International & Non-U.S.
Law: Supreme Court
Leadership
Literature, American: Authors (Alphabetized)
Literature, American: Faulkner
Literature, American: Fitzgerald
Literature, American: General
Literature, American: Hawthorne
Literature, American: Hemingway
Literature, American: Melville
Literature, American: Poe
Literature, American: Steinbeck
Literature, American: Twain
Literature, English: Authors (Alphabetized)
Literature, English: Chaucer
Literature, English: Conrad
Literature, English: Dickens
Literature, English: General
Literature, English: Joyce
Literature, English: Lawrence
Literature, English: Shakespeare
Literature, English: Swift
Literature, General: Children
Literature, General: Classic (Greek & Roman)
Literature, General: Russian
Literature, General: World
Management: General
Management: Japanese
Management: Motivation
Management: Theory
Management: Women
Marketing: Companies (Alphabetized)
Marketing: General
Marketing: Plans
Mathematics
Medical: Aids
Medical: Dentistry
Medical: Diseases & Disorders (Alphabetized)
Medical: General
Medical: Nursing
Mexican-American Studies
Mexico
Middle East: Egypt
Middle East: General
Middle East: O.P.E.C.
Military
Music: Classical
Music: General
Mythology
Nutrition
Parapsychology/Occult
Philosophy: Ancient Greek
Philosophy: Descartes
Philosophy: Eastern
Philosophy: General
Philosophy: Kant
Philosophy: Sartre
Poetry: American
Poetry: English
Poetry: Milton
Poetry: World
Political Science: Elections & Campaigns
Political Science: Foreign
Political Science: Lobbyists & Pressure Groups
Political Science: Machiavelli
Political Science: Mill
Political Science: Political Theory
Political Science: U.S.
Psychology: Behaviorism
Psychology: Child & Adolescent
Psychology: Disorders
Psychology: Dreams
Psychology: Experimental
Psychology: Freud
Psychology: General
Psychology: Jung
Psychology: Physiology
Psychology: Piaget
Psychology: Rogers
Psychology: Social
Psychology: Testing
Psychology: Therapies
Public Administration: General
Public Administration: Government Agencies (Alphabetized)
Racism
Real Estate
Recreation & Leisure
Religion: Eastern
Religion: General
Religion: Islam
Religion: The Bible
Research: Completed Studies (With Statistics & Results)
Research: Designs & Proposals
Research: Statistics & Methodology
Russia: Pre-1917 Revolution
Science: Astronomy
Science: Biology
Science: General
Science: Genetics
Sociology: Durkheim
Sociology: General
Sociology: Marx
Sociology: Social Problems
Sociology: Social Theory
Sociology: Social Welfare
Sociology: Weber
Soviet Union: 1917-1990
Sports: Drugs
Sports: General
Technology
Transportation: Automotive
Transportation: Aviation
Transportation: General
Transportation: Railroads
Urban Studies
Vietnam
Women Studies
 

RIGHT TO REFUSE LIFE-SAVING MEDICAL TREATMENT.   Term Paper ID:22734 Click to get this paper

Essay Subject: Examines refusal on legal & religious grounds in Australia, Canada & U.S. Ethics, suicide, food & water, incompetent patients, examples, children & parents, civil & common law, living wills.... More...

49 Pages / 11025 Words 45 sources, 94 Citations, TURABIAN Format $100.00 Return to List of Papers

Paper Abstract: Examines refusal on legal & religious grounds in Australia, Canada & U.S. Ethics, suicide, food & water, incompetent patients, examples, children & parents, civil & common law, living wills. Paper Introduction: The Right to Refuse Life-Saving Medical Treatment for Religious Reasons Under the Law of Australia, Canada, and the United States This paper will discuss the refusal of life-saving or life-sustaining treatment in the common law countries of Australia, Canada, and the United States. The first part of the paper will briefly introduce some of the main issues in this topic. The second, third, and fourth parts of the paper will discuss these issues under the laws of Australia, Canada, and the United States, respectively. The paper will emphasize the refusal of such treatment based on religious beliefs; however, much of the paper will necessarily be devoted to discussing the more general aspects of this topic. The reason for this is that most of the development of the law in this area has taken place in cases which have not involved religious beliefs. In fact, the cases Text of the Paper: The entire text of the paper is shown below. However, the text is somewhat scrambled. We want to give you as much information as we possibly can about our papers and essays, but we cannot give them away for free. In the text below you will find that while disordered, many of the phrases are essentially intact. From this text you will be able to get a solid sense of the writing style, the concepts addressed, and the sources used in the research paper. Superior Court, 179 Cal. [8]Lanham, supra note 3, at 4 9. 316.Bouvia v. Thecase involved a woman who had Guillain-Barré disease, which left herparalyzed from the neck down. As a result of these beliefs, courts have had to face casesin which children either became very sick or died as a result of theirparents' beliefs. London: Routledge, 1994.Note, The Limits of the Autonomy Principle: Refusal of Life-Sustaining Medical Treatment for Incompetent Persons, 22 Hofstra L. The fate of incompetent patients would depend upon whetherthey had signed an advance directive, such as the certificates provided forunder the relevant statute in Victoria, prior to becoming incompetent. [49]Dickens, The Right to Natural Death, 26 McGill L.J. 1983), cited inLanham, supra note 3, at 4 8. The relative lack ofthese sorts of cases in Australia may be due, in large part, to the fewernumbers of Jehovah's Witnesses and Christian Scientists in that country,compared to the United States. [27]Health Department (N.S.W.), Dying with Dignity: Interim Guidelineson Management (1993), cited in Freckelton, supra note 22, at 44. (N.S.W.): No. Suchthinking was expressed by Elizabeth Bouvia, who believed that her onlyalternatives to death were existence in a convalescent home or a futileattempt to live on her own. [78]Note, The Limits of the Autonomy Principle: Refusal of Life-Sustaining Medical Treatment for Incompetent Persons, 22 Hofstra L. [64]Cruzan v. Thus, some feel that it is wrong to treatparents as criminals, since they have already suffered the loss of theirchild. Director, Missouri Department of Health,[8 ] a majorityof the U.S. Instead, it narrowly addresses the issue presented toit: whether a state can require that clear and convincing evidence be shownof an incompetent patient's intent prior to the withdrawal of life-sustaining treatment. S.C.). Corrective Services Commission, unreported, 1983, S.C.(N.S.W.): No. Others cringe at the thought of allowing doctorsto make decisions concerning treatment for newborns based upon quality oflife considerations. The individual had swallowed a piece of wire obtained fromhis cell and the wire lodged in his esophagus. No Place to Go: Refusal of Life-Sustaining Treatment by Competent Persons with Physical Disabilities. They are liable to wear blinders, so to speak, inmatters concerning life and death. The reason for this was that thepatient would die a death from natural causes: the effects of the disease.Homicide and suicide, in contrast, are not natural deaths and so theprovisions regarding them would not apply in cases involving the consensualwithdrawal of treatment. 19 5). v. These arguments, however, directly conflict with the traditions ofautonomy and self-determination which are firmly planted in all threecountries. [11]Id. BibliographyAbraham, Henry J. v. Director, Mo. 1 Journal of Law & Medicine 35-46 (1993).Herr, Stanley S., Bostrom, Barry A., & Barton, Rebecca S. Ct. [67]11 S. & Med. 922 (1976).Judd v. Although courts in the United States have commonly used thisprinciple in deciding similar cases, the Lords agreed that examining thepersonality of the patient would not be relevant in making a decision as tothe maintenance of life support. [24]Airedale NIIS Trust v. In its opinion, the Court makes no mention of the distinction betweenthe two standards. Suicide is an offense in somejurisdictions in Australia and reasonable force is permitted to be used inthose jurisdictions to prevent suicide.[3] Even in jurisdictions wheresuicide is not an offense, the use of reasonable force to prevent suicidesis permitted.[4] The question arises whether the decision to forgolifesaving treatment constitutes suicide. 1989, c. From these arguments, theVictorian Social Development Committee concluded that there was a distinctdifference under common law between suicide and the right to refuse medicaltreatment.[11] Statutory Developments Using the above arguments as guidance, Victoria enacted the MedicalTreatment Act 1988 in order to confirm, clarify, and strengthen the rightto refuse medical treatment under the common law. 19 Commonwealth Law Bulletin 366-73 (1993).Freckelton, Ian. v. There is precedent in common law that all persons have a duty to carefor themselves and that those who have power over a person also have a dutyto preserve that person's life when the person has forsaken his or her ownduty. 353 (1983). In several jurisdictions, the right to refuse medical treatment andend one's life has been firmly established. Unlike theother cases considered in this area, the patient was not facing a life ofserious disability and pain, regardless of the treatment. The Nevada Supreme Courtratified Kenneth's decision to end his own life seven weeks after hisdeath.[74] As a result of having been cared for by his father, Kenneth Bergstedthad been cut off from the outside world, including the disability supportcommunity. Judges have not been shy in holding parents criminallyresponsible for the deaths of their children in cases where medicaltreatment would have saved the children's lives. [3 ]Charlesworth, Regional Developments in Bioethics: Australia, 2Bioethics Yearbook 1, 6-7 (1991-1993). Romero, 457 U.S. 2 7, 741 P.2d 674(1987).Reynolds v, United States, 98 U.S. 243 (N.Y. As aresult, the right under American law is less comprehensive than under theAct. Another issue which will be discussed is that ofliving wills, or advance directives. at 385. [61]Procureur Général du Canada c. 597 (Me. It would not bean exaggeration to say that many observers feel that anyone who makes sucha decision for such a reason is not capable of rational thought in suchmatters. 2841 (199 ). A Jehovah's Witness who refuses toconsent to a blood transfusion because he or she believes that theteachings of the Bible forbid it is sometimes compared to historicalfigures who would rather die than forsake their political principles.[34] What about parents who refuse to consent to treatment for theirchildren on the basis of religious beliefs? Ct.).People v. [7 ]Bouvia v. 2841 (199 ).Employment Division, Oregon Department of Human Resources v. Common law said that while doctorshad a duty to protect infants, they are not obliged to treat disablednewborns if such treatment were likely to be futile and the death of thechild was inevitable, or if the treatment would end up being moreburdensome to the infant than beneficial. She only "knew"that her life had become physically and emotionally unbearable. McAfee, 259 Ga. Counseling for his depression was not provided prior to hisdecision. Although thedecisions of Canadian courts have generally tended to acquiesce in thewishes of a competent patient, the language in these decisions leaves openthe possibility that courts may decide to override a patient's wishes inmore instances than will Australian and American courts. Bland.[21] Thatcase involved a man who was caught in a stampede at the HillsboroughFootball Stadium after a match. Although he couldbreathe on his own, he required artificial means of feeding and hydration.His doctors and his family decided that there was no useful purpose incontinuing his care and applied to a court for a declaration allowing thetreatment to stop.[22] The House of Lords recognized that the most important principleinvolved was the sanctity of life; however, most of the members alsorealized that this principle was not absolute. Boston: Little, Brown, & Co., 1992.President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research. It may be easy for a person whofinds him- or herself confined to the use of respirator and/or feeding tubeto fallback on the belief that their death without such aids would be thenatural will of God. Health & Safety Code § 7188.5. Thus, the court ordered the interventionof the doctors in removing the wire and forcing nutrition into thepatient.[61] The implication of this case is that the refusal of treatment by acompetent adult can be overridden by a court. These casesare the ones which have begun to establish the precedents which willcontrol the law in this area. [8 ]11 S. Perlin, Clinical Medical Ethics: Cases in Practice 141-43(1992). Dying for religious principles, on the other hand, doesnot contain this element. [85]See Abraham, supra note 36, at 975-85. In the case of a severely disabled person who is not, andnever will be, able to lead what is considered a normal life, it is naturalto assume that the burden of their condition has caused them to abandonrational thinking. [89]Id. (4th)385 (Que. They were willing to sacrifice their lives for what they believedwere higher moral beliefs. Thus, the law may grant theright to refuse treatment under circumstances that religious doctrine wouldnot.[13] The Medical Treatment Act 1988, enacted in Victoria, is acomprehensive statement of the law concerning the right to refuse medicaltreatment. Bergstedt, 8 1 P.2d 617 (Nev. Thismost often occurs when the patient is comatose or afflicted with somedisease which affects the cognitive process. By nature, even healthyinfants are generally unable to adequately give voice to their concerns andneeds. [5 ]S. [2]Molloy, Mepham, & Clarnette, supra note 1, at 2. [35]See T.M. The person involved did not cause the disease,much less intend to cause it; therefore, refusing treatment which maysimply prolong life for a little while but not ultimately prevent deathfrom the disease cannot be considered suicide. At some point, the only treatment availablewould be palliative care, trying to make the patient as comfortable aspossible. A psychiatrist who examinedher stated that she was competent to make medical decisions, but thehospital where she stayed refused to turn off the respirator. [5]Williams, Texbook of Criminal Law 613 (2d ed. [82]Reynolds v, United States, 98 U.S. 6. The criticism of the Bouvia and Bergstedt casesdisplays a certain paternalism which believes that any decision by aseverely disabled person is at the very least suspect, if not irrational.Such persons are not capable of rational thinking as a result of theirconditions, and this irrational thinking is nowhere better illustrated thanin their decisions to end their lives. As noted above, mostcritics believe that her condition prevented her from thinking rationallyand making rational decisions. of Health, 11 S. First, and most importantly, the issues in this area are verybasic: life and death. [79]Id. In order to do so, thesecriticisms must be examined in their original contexts. Hotel-Dieu de Quebec, et al., (1992) 86 D.L.R.(4th) 39 , 392 (Que. [33]Skene, supra note 32, at 13-14. In addition, theprovince's interest in preserving life took precedence over the respect fora person's will and right of self-determination. Rather, the individual considers his own lifevery valuable, but views the principle as even more valuable. In principle, the power to prevent suicide shouldinclude preventing suicide by omission, as well as suicide by commission.For instance, a firefighter would presumably have the legal power to rescuea person from a burning building, even though that person expressed adesire to remain in the building and die.[8] The hunger strike cases do not provide firm direction because theindividuals involved were prepared to die only if certain conditions werenot met. [18]S. Inaddition, the consensual withdrawal of life-sustaining treatment is areasonable act which does not breach the duty to use reasonable knowledge,care and skill in administering treatment. [21][1993] 2 W.L.R. In turn, unnecessaryinterventions to avoid liability are reduced.[86] The first jurisdiction to statutorily recognize some form of livingwills was California, which passed the Natural Death Act in 1976.[87]Since then, a number of jurisdictions in the United States have passedsimilar provisions.[88] California's Natural Death Act provided a standardform allowing a person to make a written record of their wish not to bekept alive in the event of imminent death if they have "an incurableinjury, disease or illness certified to be a terminal condition." Thisform reduces the flexibility of living wills and limits the circumstancescovered by living wills. Blaue, [1975] 1 W.L.R. Distressed bythe quality of life resulting from their disabilities, they ask to have thefeeding tubes removed so that they can starve to death. Commonwealth, (1943) 67 C.L.R. The judge in the Nancy B case was simply trying to get around amajor problem in the Criminal Code. Consequently, when lung cancer was discovered in his father,Kenneth began to express a wish to die. [77]Herr, Bostrom, & Barton, supra note 69, at 23-24. McKay, No. Hotel-Dieu de Quebec, et al., (1992) 86 D.L.R. 158 (1944).Procureur Général du Canada c. v. The Canadian legislative pronouncements on the subject have been madeby individual provincial legislatures, if at all, and are therefore notuniform. In addition, thisright is not made subject to the right of innocent third parties, so that apatient cannot be forced to accept treatment meant to keep him or her alivefor the benefit of dependents. [88]Montgomery, supra note 86, at 41-42. Washington D.C.: Government Printing Office, 1983.Singer & Siegler. [51]Fish, Nancy B: The Criminal Code and Decisions to Forgo Life-Sustaining Treatment, 19 Commonwealth L. CHILDREN AND PARENTS The issue becomes more complicated when the person in need oflifesaving treatment is a child. [26][1993] 2 W.L.R. Ct. v. The effects of theirdecision will be final and irreversible. Gladstone, (19 9) 26 T.L.R. [45]Judd v. California requires that such instruments bewitnessed by two persons who are neither beneficiaries under any existingwill of the patient nor are health care providers. For this they are oftenberated by physicians and other medical care givers who do not share thesereligious beliefs, and are sometimes even prosecuted for child endangermentor neglect. Unfortunately,the Act is rather vague in its definition of "palliative care." It statesthat palliative care includes: (a) the provision of reasonable medicalprocedures for the relief of pain, suffering and discomfort; or (b) thereasonable provision of food and water.[18] Under one interpretation, thesecond part merely confirms that "reasonable medical procedures" includesthe reasonable provision of food and water and thus the act of force-feeding will be covered under the certificate procedure if it is done tosave and cure, rather than just alleviate pain and discomfort. From this doctrine, it logically follows that apatient is entitled to make an informed decision to refuse any suchtreatment. However, the issue ofthe state interest in preserving all life refuses to be buried. As will be seen, most of these caseshave been heard by United States courts, largely as a result of it largepopulation and diverse religious groups. Ont., 1991. The individual refused all treatment and nourishmenthowever, stating that he would rather die than return to his country oforigin. denied, 429 U.S. 366.Leigh v. Consequently, there are many people in the UnitedStates who belong to religious groups which entertain beliefs not entirelycompatible with the modern world. 12 .Cruzan v. If the patient's conditionprevents the making of such a decision, then the "patient advocate" mustbecome involved.[27] The Attending Medical Officer must take into accountany prior directive issued by the patient, as well as the "best interestsof the patient at the time."[28] If the patient's wishes are not known,then the patient's family must be consulted and determination must be madeof the patient's best interests. (1978). The patient could know nothing about thedecision or his condition and to pretend that he could was meaningless.[26] The decision of the House of Lords in Airedale influencedlegislatures and government agencies in Australia to take up the issue in alimited fashion. 2841, 2851 n.7 (199 ). 3 (1992). 3. v. Thispsychiatrist said that Bergstedt's quality of life would be unalterablydamaged by his condition, which would only worsen over time. [9 ]President's Commission for the Study of Ethical Problems inMedicine and Biomedical and Behavioral Research, Deciding to Forgo Life-Sustaining Treatment (1983). S.C.).R. Dept. The New South Wales Health Department, for instance,issued guidelines on the subject, affirming the right of a competent adultpatient to refuse lifesaving treatment. 4 82 of 1983. Pierson, 68 N.E. 19 5).Superintendent of Belchertown State Sch. In addition, the United Stateshas had a long history of religious freedom and unusual devotion toreligious principles. 353 (1983).State v. The reason for this is that most of the development of the law inthis area has taken place in cases which have not involved religiousbeliefs. There is no right for adoctor or a relative to make a decision for the patient in suchcircumstances, even if the patient's wishes were known before the patientbecame incompetent. 22, § 37. L.J. [42]People v. [59]Mental Patient's Protection Act (Que.), R.S.Q., c. 922 (1976); Rasmussen v. They sincerely believe that God willtake care of their children and that He is the ultimate decisionmaker inmatters of life and death. Article 116 of the Federal Constitution prohibits the enactment ofany law which infringes upon the free exercise of any religion. One way of dealing with this potential problem is by requiringsuch directives to be made in writing. Supreme Court recognized (without holding) that a person has aconstitutional right to refuse medical treatment, even if that treatment isnecessary for the maintenance of life. Her tendency to focus on a specific detail outside ofits proper context indicated that she was suffering from severe depression. Massachusetts, 321 U.S. [94]Cal. Robert Lee and Derek Morgan) 37, 41(1994). From this reasoning, it is not entirely clearwhether the Court would also permit the use of the best interests test.However, the Court framed the issue in the language of personal autonomy.It stated that Missouri was ultimately seeking to protect the personalelements of the choice between continuing treatment and withdrawing it.Even though the individual in the case, Nancy Cruzan, had family memberswho claimed to be speaking for her, the Court feared that there would becases where the family members would be overcome by the burdens of a lovedone hooked up to extraordinary and expensive life support equipment; insuch cases, memories and judgments may become clouded and the true intentof the patient would overlooked. [34]See R. F (unreported, Victorian Supreme Court, 2 July 1986,Vincent J.), cited in Skene, The Baby M Inquest: Treating Children withSevere Spinal Bifida (article supplied by client, n.d., n.p.). These blinders may be reinforced by theattitudes of persons close to them, who also rely upon religion to theextent that they are ignorant in matters concerning medicine. Cas. The patient wasnot terminally ill or severely disabled in the normal sense. 113 (1973).Schneidas v. Gladstone, (19 9) 26 T.L.R. The judge initiallystated that the patient was asking for a recognition of the principle ofpersonal autonomy and her right of self-determination. Bland, [1993] 2 W.L.R. The trend may be set by statutes covering adultpatients, some of which allow competent adult patients to refuse medicaltreatment on quality of life considerations. Ct., Clark County, June 22, 199 , cited inHerr, Bostrom, & Barton, supra note , at 11. [91]Montgomery, supra note 86, at 42. The second, third, and fourth parts of thepaper will discuss these issues under the laws of Australia, Canada, andthe United States, respectively. Everyone with whom hecame into contact supported him in his decision to end his life. She askedrepeatedly that her respirator be turned off. He petitioned a Nevada court toallow someone to administer a sedative after his ventilator was shut off,without that person being held criminally liable for his death. [75]McKay v. However, they also tend toagree that the subjective intent standard is extremely difficult to apply.The task of determining the intent of a person who can no longercommunicate is a daunting one and open to all sorts of misinterpretationsand abuses. Rptr. at 2851, 2852 (citing Youngberg v. [15]Id. at 42. Ct. Among the most volatile of issues in this area is that of disabledpatients who decide that they no longer wish to continue treatment, eventhough interruption of treatment will eventually lead to their deaths.Again, while this issue does not deal directly with that of religion, it ismost instructive in how courts have reacted to these cases. 872 (199 ).Fleming v. Because of the finality of thisdecision, the law requires that the person making the decision be acompetent adult who has been informed of all the facts in their case andthe probable outcomes of their decision. denied, 429 U.S. There is no guidance for predicting the outcomes of these cases,but parents would probably not be allowed to make such decisions refusinglifesaving treatment, given the current climate of public and judicialopinion in advanced countries. The Right to Refuse Lifesaving Medical Treatment UNITED STATES The right to refuse medical treatment has nowhere been the subject ofas much public debate as in the United States. In addition, the normal caredue a sick person could not be interrupted in any case.[12] When considering these last arguments, it must be remembered that theright under common law to refuse medical treatment is not necessarilycoextensive with the moral right to do so under Catholic theology. 262, s. Deciding to Forgo Life-Sustaining Treatment. This standard necessarilymakes a judgment concerning the quality of life of the patient.[79] Asnoted in the previous sections of this paper, many courts and commentatorsare uneasy about making such determinations. 116.Airedale NIIS Trust v. When strictlyinterpreted, the Criminal Code provisions concerning homicide may hold aphysician criminally responsible for the death of a patient who refusedtreatment. [43]Krygger v. In anticipation of such cases, the Courtheld that it was proper for states to require a very close examination ofthe purported intent of the patient.[81] Focusing upon the substituted judgment test may have been in keepingwith the nature of U.S. Doctors determined that thewire needed to be removed and that he was in danger of seriouscomplications. Section 216 states that "[e]veryone who undertakes to administersurgical or medical treatment to another person ... The Right to Refuse Life-Saving Medical Treatment for Religious Reasons Under the Law of Australia, Canada, and the United States This paper will discuss the refusal of life-saving or life-sustainingtreatment in the common law countries of Australia, Canada, and the UnitedStates. [39]R. Kenneth Bergstedt required the use of a ventilator and hadlived his entire life under the care of his father, without any realcontact with the outside world at large. Additionally, the doctorstreating this individual must provide all of the information concerning thetreatment and the probable consequences of its termination. Within the medical community, thisright comes under the doctrine of informed consent. . The court granted this petition, but directed thestate attorney general's office to appeal the decision to the state supremecourt on an expedited basis.[73] While the case was making its way beforethe Nevada Supreme Court, Kenneth and his father decided to act. v. [4]See Crimes Act 1958 (Vic.), s. (4th) 39 (Que. As a result, Americans have become moreconcerned about their potential fates in the event they should becomeincapacitated and forced to live on life support systems. Their exercise of thepower to prevent the prisoner's suicide would have been lawful insofar asthey had the power as prison officials.[7] Although these two cases suggest that there can be suicide byomission, they do not agree as to whether reasonable force may be used toprevent such a suicide. Over the decades, as medical science andtechnology made great advances, parents who belonged to certain religiousfaiths refused to allow treatment for their children when they were sick.They believed either that only God could heal individuals or that certaintypes of treatment, such as blood transfusions, went against the teachingsof the Bible. Those close to him, including hisfather, supported him in that decision. 479 (1965).In re Quinlan, 7 N.J. McAfee, 259 Ga. These "documents" allow a patient toexpress their intentions in advance, eliminating this question should theybecome incompetent and unable to make such a decision when they fall ill. 3 7 (1982).----------------------- [1]W. As explained above, this method analyzesobjective criteria, such as pain, the prognosis for recovery, and lifeexpectancy; it then determines whether the burdens of continued existenceclearly outweigh the benefits. Sandford, 59 A. In1986, a Supreme Court judge in Victoria ordered that a 9-day-old babyafflicted with spina bifida be made a ward of the court and ordered thehospital to take all necessary steps to preserve the baby's life. A seriously ill person who decides to discontinuevital treatment has essentially decided to die. 675, 676 (1878), noted in R. Hines, 33 L.T.R. Williams, (1912) 15 C.L.R. This can be done eitherthrough prior written announcements made by the patient, such as in aliving will, or by examining all aspects of the person's life. Ct.); Malette v. Society as a whole is more willing to acquiesce in the desiresof such persons to end their lives than to provide a much greater degree ofsupport to these persons in living their lives. Section 215 states that [e]veryone is under a legal duty to ... (3d) 74. at 412. 139.Malette v. They may find that the only way to face the reality oftheir lives is to place their entire lives in "the hands of God." They maybelieve that if God wishes for them to continue living, they will do so,regardless of the efforts of doctors. It provides a procedure through which a patient can register arefusal to accept medical treatment, creating, in effect, a living will.It enacts the offense of medical trespass, which applies to physicians whoundertake any treatment which is for a medical condition covered by thecertificate signed by the patient.[14] This certificate is completed whena patient wishes to refuse medical treatment. Corrective Services Commission, unreported, 1983, S.C. [2 ]Lanham, supra note 3, at 429-3 . This principle encompassed thesituation where a person makes explicit provisions for the refusal oftreatment in anticipation of an event resulting in their incompetence.Most of the members did not delve into the potential problems, such aswhere a person who is deteriorating into a persistent vegetative statechanges their mind and retracts the anticipatory refusal.[23] The problem in the case, however, was that Mr. Bland, like mostpersons, had never given any indication as to such a situation. at 43. As a result, parents have been led intobelieving that they are violating no law by not seeking medical attentionfor their sick children. [31]Charlesworth, supra note 3 , at 7. [is] under a legalobligation to have and to use reasonable knowledge, care and skill in sodoing." A physician who withdraws lifesaving treatment from a patient maytherefore be held criminally liable for having failed to use "reasonableknowledge, care and skill." Section 217 holds anyone undertaking to do an act to a legal duty toperform this act "if an omission to do the act is or may be dangerous tolife." Thus, a physician who places a patient on a respirator is under aduty to maintain this treatment so long as the patient's life depends uponit. Rptr. 463B; Crimes Act 199 (N.S.W.), s.574B. Elizabeth Bouvia was afflicted with quadriplegia as a resultof cerebral palsy. The womansought an injunction which would permit her physician to withdraw therespirator.[52] After first noting that civil law precedents permitted the woman torefuse the continuation of lifesaving treatment, the Quebec Superior Courtjudge confronted the issue of the Criminal Code. This isolation prevented him from meeting those who could havehelped him live his life after his father's death. The judge asserted that the Criminal Code provisions should beinterpreted in such a way as to avoid "absurd results," one of which wouldbe the deprivation of a patient's right to refuse treatment. 63 Canadian Bar Review 59-9 (1985). Inaddition, the President's Commission on Bioethics decided that advancedirectives should also be available for treatment besides that designed tosustain life.[9 ] These formulations of rules concerning living wills andadvance directives acknowledge that such directives are based upon thepatient's right of autonomy and self-determination. This principle conflicts with the principles of personalautonomy upon which the Bill of Rights is based. They serve as a methodof allowing such rights to be exercised when a patient cannot communicatethis view.[91] One problem with the current formulations of law regarding livingwills is that patients can generally utilize them only in situations wherethey are terminally ill or their conditions are degenerating to the pointof inevitable death. Indeed, they may take this thinking one step furtherby refusing any sort of medical treatment, believing that if God wants themto live, He will cure them without the assistance of human physicians. They also compensate for problems in memory onthe part of those in whom the patient confided. There is no easy way of deciding whether it is in the infant's bestinterest to live a life of pain, or to end the only life it will everhave.[33] Religious Grounds for Refusing Treatment From the preceding discussion, it is apparent that competent adultshave the right to refuse medical treatment, even if that treatment isnecessary for the continuation of life. As one critic has noted, she minimized her ownachievements in facing setbacks which would have devastated the strongestnon-disabled person. Ct. 35, 35-36 (1993). Thus, it is somewhatnatural that when the issue concerns the fate of a person who can no longerspeak for themselves, the Court will look to methods which somehow create asubstitute for their autonomy, rather than simply allowing the state toimpose its own judgment of what would be in the patient's best interest. He was not informed of all of the alternatives that would beavailable to him after his father's death or incapacity. 19. [93]Id. 25 (1875). [13]Id. The first part of the paper will briefly introduce some of themain issues in this topic. OnOctober 4, 199 , his father administered Seconal and Valium and loosenedthe ventilator from his trachea, causing Kenneth's death. Themost serious debate would concern parental decisions made for minorchildren. The main reason for thisis that these cases have received widespread publicity in the United Statesduring the last twenty years. [37]R. [23]Id. Connecticut,351(?) U.S. [54]Id. In addition,many attorneys have advertised services for the drafting of living willsand have helped increase the market for these documents. Eventhough Christian religious thought condemns suicide as immoral, the commonlaw in Australia does not uniformly do so. 5. On theother hand, such care can be refused under Australian common law, whichmakes no distinction between palliative care and other types of medicalcare.[2 ] This issue has become an important one in American common lawand in discussions involving morality and theology. The biggest limitation onthis principle was the principle of autonomy, under which a competent adulthad the right to refuse medical treatment. 297 (1986).Church of New Faith v. [63]Bouvia v. Molloy, V. Superior Court, 179 Cal. Wade, 41 U.S. Althoughpersonal autonomy rightfully includes the protection of religious beliefsheld by a person, certain such beliefs may be the product of depressionrelated to disability or terminal illness. Rev.7 3, 72 -21 (1994). Downes, 1 L.R.Q.B. 2 7,215, 741 P.2d 674, 682 (1987); Superintendent of Belchertown State Sch. [7]Schneidas v. (2d) 417 (Ont. Even thepsychiatrist assigned to prepare a report for Bergstedt's attorney assumedthat Bergstedt's depression did not overwhelm his ability to make arational, informed, and voluntary decision concerning his life. 38 .Krygger v. Fleming, 154 Ariz. In1868, a jury acquitted the parents of a child for whom they refused medicaltreatment on the basis of sincere religious beliefs.[37] In response tothis decision, however, Parliament amended the Poor Laws to hold parents orlegal guardians criminally liable for willful neglect in failing to providemedical care for children with serious illness.[38] In spite of this statute, a judge failed to find the parents of achild guilty of neglect in a similar situation in 1875. Mostof the common law precedent has come from Great Britain and the UnitedStates. (Supplied by Client).Montgomery, Jonathan. at 38-39. Thisraises the issue of how to define an "inevitable death." Some argue thatthe term is no longer useful, since the quality of life for that newbornwill not be improved, even though it may be kept alive for a few months,rather than a few days. [4 ]Abraham, supra note 36, at 961-62. They believe thatthese comments constituted extremely negative statements about disabilityand would serve to discourage other disabled persons from continuing theirexistences. 1 , 4 , 355 A.2d 647 (1976), cert. [6]Leigh v. Australian Law Concerning the Right to Refuse Treatment Australian common law grants a mentally competent adult of at least18 years of age the right to consent to or refuse medical treatment. v. First, the benefitlikely to be received by the patient had to be determined. A physician who disconnected thepatient's respirator without her consent or against her wishes wouldclearly by held criminally liable under the Code provisions for thepatient's death, since the death would have resulted from the respirator'sremoval. As a result, most common law jurisdictions have adopted someform of the best interests test. While oral instructionsgiven to the physician by the patient can also be taken into account, theyshould not be made binding without clear evidence as to their content.[93] Written advance declarations are not free from abuse, since they canbe forged or the patient can be unduly influenced by some interested partyeven while competent. Courts inCanada, in particular, seem willing to override a patient's decision torefuse life-saving treatment under certain circumstances. Australian law in this area will probably be influenced by thedecision of the House of Lords in Airedale NIIS Trust v. 3d 1127, 225 Cal. He hadintentionally swallowed the wire in order to cause his own death or toforce the Immigration authorities to agree not to deport him. Bland, [1993] 2 W.L.R. Ct. 279; Bill 1 9, An ActRespecting Consent to Treatment, 1st Sess., 35th Leg. Refusal of Medical Treatment in "Captive" Circumstances. Dept. Commissioner of Pay-Roll Tax (Vic), (1983)154 C.L.R. It certifies that thepatient is competent to make such a decision and has been informed aboutthe nature of his or her condition.[15] The validity of the certificate isnot affected by the state's interest in the preservation of life, whetherthe interest is in the usefulness of the life of a certain patient or theidea that all life is precious and worth preserving. On the other hand, itwas suggested in dictum that a failure to comply with mandatory votingrules in a federal election might be legally justified on religiousgrounds.[45] It is difficult to ascertain in what direction a court would go whenconfronted with a case involving a refusal of treatment on religiousgrounds. They begin to believe thattheir fate rests in the hand of God, and that no human medical treatmentscan alter this fate. Sup. 35(2). Hines, 33 L.T.R. Like KennethBergstedt, they may live in a world which is isolated from opposingviewpoints or which does not include groups which can support them in theirphysical conditions. Persons who intend to end their lives no matterwhat the circumstances, however, have no such beliefs. [86]Montgomery, Power Over Death: The Final Sting, Death Rites: Lawand Ethics at the End of Life (Eds. Director, Mo. Theconflicting interests of a pregnant woman and her fetus naturally lead toconflicts in the law in this area. Even if thepatient never made such an indication, those persons close to them may beable to agree upon how the patient would have made such a decision, basedupon their intimate knowledge of the patient. In addition, she suffered from psychological trauma asa result of many personal and family setbacks. If the patient isalready a resident of a nursing home, one of the witnesses must be anofficial patient advocate or a specially appointed ombudsman.[94] Theserequirements are similar to those for the making of a will. Sucha determination required looking at several factors. The application of the general rule allowing a patient to refuselifesaving treatment in Quebec was placed in jeopardy by a ruling in 1984by a court decision concerning an incarcerated immigrant awaitingdeportation. It isconceivable that the guarantee of Article 116 would not be consideredabsolute in these circumstances. Wagstaffe, 1 Cox Crim. Consistency would dictatethat parents be allowed to make such decisions for their infants based uponthe same considerations.[31] There are few cases in Australia law dealing with this issue. Robert Lee and Derek Morgan), 37-53. Fleming, 154 Ariz. Such a belief is a fairly understandable reaction inindividuals who have no control over their health and well-being. Few of these patients have suicidalintentions which are separable from their physical conditions. 1411; Lanham, supra note 3, at4 9-1 . A case not related toreligion involved a thirty-one year old quadriplegic man named KennethBergstedt. Other times, thesituation involves a patient who has always been mentally incompetent or itinvolves an infant. Although supporters of the law argued thatit comported with statements of the Archbishop of Melbourne regarding theVatican's teachings on the subject, the Archbishop himself said thatpatients had a duty to care for themselves and that the right to refusemedical treatment did not include a right to refuse treatment which was inproportion to the moral obligation to maintain life with all the reasonablemeans available. Reid, (1991) 4 O.R. 675 (1878).R. Another way in which a severely ill or disabled person could usereligion as an excuse for rejecting the efforts of doctors is when theinformation base upon which that person makes his or her decisionconcerning medical treatment is not complete. Written advance directivesconstitute concrete evidence of the patient's wishes, reducing thelikelihood for disputes. 158, 17 (1944). As a result, they often embrace extremepositions instead of recognizing balanced and rational alternatives. 3d 1127, 225 Cal. This was almost exactly how Elizabeth Bouvia felt, only she did notexpress the view that her fate was in the hands of God. Thus, the individual must be able to understand the import ofthis decision, correctly perceiving the what he or she is refusing and whatthe consequences of this refusal will be. These individuals may be able to breathewithout medical assistance, but they cannot feed themselves. In cases where such prosecutions have taken place, courts haveoften been lenient in sentencing these parents, admitting that the law wasunclear and possibly misleading.[85] Living Wills Living wills have probably received more attention in the UnitedStates than in any other country. Parents havetraditionally been imbued with the power of making decisions concerningtreatment for their children. Withdrawal of Life Support: The "Persistent Vegetative State" Conundrum. v. [83]Employment Division, Oregon Department of Human Resources v.Smith, 494 U.S. Power Over Death: The Final Sting. (2d)417 (Ont. It is natural, then,that religion and medicine have frequently clashed in American courts. Strictly speaking, they have been correct,because most of the states have statutory exceptions for faith healing.However, when a child dies as a result of a lack of medical attention,these exceptions do not necessarily protect the parents from charges ofhomicide. 38 , 387 (Higgins J). THE GENERAL STANDARD FOR REFUSING TREATMENT From the above cases, it appears that relatives of incompetentpatients tend to rely upon what they perceive the patient's wishes to havebeen. Finally, Section 14of the Criminal Code states that a person cannot consent to having "deathinflicted upon him," and any "such consent does not affect the criminalresponsibility of any person by whom death may be inflicted...." Thisprovision directly conflicts with the civil law precedents which allowpatients to refuse lifesaving treatment and which require physicians torespect such choices.[51] These conflicts between the civil law precedents arising out of thedoctrine of informed consent and the Criminal Code provisions concerninghomicide were addressed by the Quebec Superior Court in early 1992. Such irrational thinking could have alsoeasily led her into believing that only God could ultimately save her lifeand similarly rejecting the efforts of human doctors to prolong her life. In this respect, societymay be silently advising these individuals to end their lives, rather thanhelping them live a life of dignity.[69] The criticism applied to thesecases might also be applied to cases involving a decision to refuselifesaving treatment on religious grounds. [74]McKay v. The Baby M Inquest: Treating Children with Severe Spinal Bifida (article supplied by client, n.d., n.p.).Somerville, Margaret A. 26 McGill Law Journal 847 (1981).Fish, Arthur. In fact, thetreatment would have immediately and permanently "cured" him. In one case, the leader of a religious communitywas found guilty of manslaughter by a jury in conjunction with the death ofa fifteen-year-old boy who died of illness and starvation. She required a respirator to breathe andthere was no expectation that her condition would improve. The acts enacted in Quebec and Ontario deal only withinvoluntarily hospitalized, psychiatric patients. Rev. 951, 958-6 (1993). The only exception to the general rule is if there isan unborn child at risk. CA).McKay v. The only requirement on the part of the individual making thedecision is that he or she be competent enough to make such an informeddecision. Clarnette, Let Me Decide 1-2 (nd). INCOMPETENT PATIENTS A special problem arises in situations where the patient is notcompetent to make a decision as whether to refuse lifesaving treatment.Usually, this occurs when a patient has sustained some sort of injury whichhas placed them in a persistent vegetative state. Anthony Bland's lungs were crushed andpunctured and the supply of oxygen to his brain was cut off interruptedlong enough to cause irreversible brain damage. Most do not cover situations where the patients arefacing life-long disablement, rather than death. Ct. This involvedexamining medical evidence and practice. It has been suggested that society hasbeen overly accommodating towards the decisions of severely disabledpersons to effectively end their lives by refusing necessary medicaltreatment. 145 (1878).Roe v. Smith, 494 U.S. As a result, Mr. Blandentered into a persistent vegetative state, with no capacity for higherbrain function, from which he had no chance of recovery. Health & Safety Code §§ 7186 et seq. If this sort oftreatment is considered palliative care, then it is not covered under theAct and the patient cannot sign a certificate refusing such care. Nancy B: The Criminal Code and Decisions to Forgo Life- Sustaining Treatment. This common lawdoctrine is not new and probably evolved from the general distrust ofmedicine and physicians which was prevalent during the time period whichended in the late Nineteenth Century. [55]Fish, supra note 51, at 369-7 . & Med. The person who sustained a debilitating injury was oncecompetent to make a decision. [46]Church of New Faith v. Hotel-Dieu de Quebec, et al., (1992) 86 D.L.R. 198 , c. Let Me Decide n.p, n.d. When considering disabled persons and the issue of death, someexperts believe that the most important characteristic in the personalityof a person who wishes to die is a sense of hopelessness. This standard has been criticized in its application to competentpersons with severe disabilities. Thisright attaches even if refusal of treatment would directly lead to graveharm or even death. Clinical Medical Ethics: Cases in Practice. Blaue, [1975] 1 W.L.R. Ms. Bouvia's life consisted of a series of horrible tragedies whichaffected her psychological state. App. McKeon, (1926) 38 C.L.R. [1 ]Victorian Social Development Committee, Inquiry into Options forDying with Dignity §3.4.6 (1987), cited in Lanham, supra note 3, at 411. Therefore, thediscussion concerning English common law as it has been applied inAustralian law is relevant with regard to Canada. In contrast to more typical cases involving child neglect andabuse, parents who refuse treatment for their children on religious groundslove their children in the conventional manner and would not considerharming their children. Suicidal persons may tend to perceive situations as unresolvable.These persons think in a rigid or dichotomous fashion, analyzing situationsin an "either-or" manner. [62]Somerville, supra note 57, at 81-83. In these cases, the parents are usually seen as sacrificing theirchildren's lives for a principle which their children are not mature enoughto accept. McKeon, (1926) 38 C.L.R. 316, 361. Canadian courtshave applied this doctrine to situations in which treatment has alreadybegun: a competent adult patient has the right to request that thetreatment be ended.[47] In addition, Canadian legislative acts have alsorecognized this right.[48] Canadian legal commentators have also concurredin this opinion.[49] The problem in Canada is that portions of the Criminal Codepotentially hold physicians and other care givers criminally liable forwithholding or withdrawing life-saving treatment, even though the patienteither refused the treatment or asked that it be withdrawn. 2841 (199 ). 8 Issues in Law & Medicine 3-36 (1992).Lanham, David. 4 1,4 7 (199 ). [53]86 D.L.R. v.Saikewicz, 37 N.E.2d 417, 424 (1977), citing Griswold v. Dying for religious principles, on the other hand, iscommonly associated with a sense of sacrifice and even heroism. Under thelatter approach, the court must take into account the patient's personalityand beliefs, largely by taking testimony from the friends and family of thepatient.[78] The second method used by courts in making such decisions is the"best interests" standard. Finally, withdrawal of the respirator would not constitute murder,manslaughter, or the aiding of suicide. 19 3).Prince v. If they begin to believe thattheir fate rests solely upon the decision of a divine being, they may reachthis belief largely because they can no longer visualize any purely humanactions which might alleviate their suffering. Each of these situations has to be handleddifferently. [22]Freckelton, Withdrawal of Life Support: The "Persistent VegetativeState" Conundrum, 1 J.L. Superior Court (Bouvia I), 225 Cal. [19]Lanham, supra note 3, at 426-27. [36]See Abraham, Abraham, Isaac and the State: Faith-Healing and LegalIntervention, 27 U.Richmond L. Thus, that person may have made some pastindications as to how they would decide in such a situation. It might be arguedthat seriously-ill patients suffer from a diminished capacity to makerational decisions about their conditions. Romero, 457 U.S.3 7, 321 (1982)). 366. 426 (Que. Life with hisfather had convinced him that he would be abandoned by society once hisfather died. State laws concerning these cases, however, have been schizophrenic,largely because most states wrote exceptions into their statutes toaccommodate faith healing. Nothing in the Act expressly says thatthe provision of food and water is not medical treatment. Thus, thesections regarding criminal negligence could not be read as imposinggeneral, unspecified duties on physicians, who already were subject tospecific duties imposed by other sections on the Criminal Code. In fact, the cases with the most impact have not dealt withpatients following religious tenets. As will be discussed, the motivationof patients who claim that they are refusing treatment because of theirreligious beliefs may often not be "pure;" they may likely be motivated bydepression as well. Abraham, Isaac and the State: Faith-Healing and Legal Intervention. Hôpital Notre Dame et un autre (défendeurs) et Jan Niemiec (mis en cause), [1984] C.S. The first British cases were decided in the last half of theNineteenth Century and were not entirely consistent with each other. [14]Medical Treatment Act 1988, s. Another emotional issue is that of children. [58]Mental Health Act of Ontario, R.S.O. Their intentionsare based upon contempt for their own lives, which they believe are nolonger worth living.[9] This leads us to the consideration of patients who wish to end theirlives by refusing treatment. [92]Id. As will be seen below, some Canadian and American courts have beenreluctant to recognize an absolute right of patients to refuse medicaltreatment, even where the intention of the patient to do so is clear andthe patient is clearly competent to make such a decision. of Health, 11 S. 597 (Me. Schneidas v.Corrective Services Commission[17] said that the provision of food andwater was medical treatment within the context of prison regulations. Under the common law principles concerningsuicide, choosing to refuse treatment on the grounds of religiousprinciples was often not considered suicide. 4 82 of 1983: 7 Crim. However, normal rules of statutory construction willdictate that the Act be interpreted in the manner which least infringesupon rights which already exist, such as those of autonomy andinviolability[6 ] and their application under the doctrine of informedconsent. 12 , 13 (Mason ACJ and Brennan J). Such criticism and punishment usually take place after thechild in question has died. App. provide the necessaries of life to a person under his charge if that person - (i) is unable, by reason of detention, age, illness, insanity or other causes, to withdraw himself from that charge, and (ii) is unable to provide himself with the necessaries of life.A physician who withdraws treatment from a paralyzed patient may havebreached his duty to provide the necessaries of life. In Advances in Internal Medicine, 36 Yearbook of Medicine 57-59 (1991).Skene, Loane. In Death Rites: Law and Ethics at the End of Life (Eds. at 2851. Wade, 41 U.S. These common law principles still survive in court decisions inthese countries and courts in all three have held that competent adultpatients may choose to refuse life-saving treatment. at 396. Wagstaffe, 1 Cox Crim. A competent patient insuch circumstances could lawfully refuse sustenance and choose to die,while an incompetent patient could not, even if he or she had executed anadvance directive choosing to do so.[92] One problem with advance directives and living wills is the potentialfor abuse. American law generallybalances this right against the state interests in preserving life. However, if the patient at issue isincompetent, states can require that clear and convincing evidence be shownthat the person would have wanted the termination of treatment. v. The Right to Choose to Die with Dignity. [41]State v. 53 (1868).Rasmussen v. Their extreme religious faith has made these patients blind tomodern realities and irrational in their decision-making processes.Therefore, according to this line of argument, the state must step in andforce these people to receive the treatment necessary to keep them alive. In addition to these provisions, the Criminal Code prohibits aidingand abetting suicide.[5 ] Within the definitions of the relevant terms,there is no distinction between aiding and abetting on the one hand and thewithdrawal of life-sustaining treatment on the other. 4 82 of 1983: 7 Crim. As noted by some critics of the outcome,an argument could be made that she was not competent to make an informeddecision concerning her treatment; non-disabled persons who exhibit similarsuicidal tendencies are often not considered competent to make suchdecisions.[72] It is uncertain how this reasoning might be applied to persons whochoose to refuse lifesaving treatment on religious grounds. 27 University of Richmond Law Review 951-87 (1993).Charlesworth, Regional Developments in Bioethics: Australia, 2 Bioethics Yearbook 1, 6-7 (1991-1993). CasesAdelaide Company of Jehovah's Witnesses Inc. (N.S.W.): No. Ct.). In effect, withdrawal of the respirator wouldcause the patient's death, so the act of withdrawing this treatment couldnot be homicide or aiding suicide.[54] Critics of this decision argue that the judge essentially used falsereasoning in reaching his decision. [57]Somerville, Refusal of Medical Treatment in "Captive"Circumstances, 63 Canadian Bar Rev. 59, 7 (1985). L.J. The Right to Natural Death. Faith healing has had a long history inthe United States and still enjoys many adherents. The paper will emphasize the refusal ofsuch treatment based on religious beliefs; however, much of the paper willnecessarily be devoted to discussing the more general aspects of thistopic. Likewise, if God wishes to end theirlives, there will be nothing that any doctor could do to keep them alive.Therefore, the various treatments proposed by medical experts will onlyamount to pain and discomfort, with no eventual benefit. The individual considers his or her own life as not worthliving any longer. [68]11 S. Compared to Australia andCanada, the volume of argument and litigation on the subject has beenimmense. 19 3). Many have framed the issue not in terms of suicide, but interms of letting nature take its course. It may be possible to extend thelives of severely disabled newborns from a few days to a few months. The only exception to this rule is where the patient is sufferingfrom a life-threatening illness; a doctor is then required to take whatevercourse of action which is necessary to preserve the patient's life.[2] While this rule seems fairly straightforward and clear, itsapplication in situations where a patient chooses to refuse treatment inorder to die has not been clear. This seems to follow a belief in the "substituted judgment" standardarticulated by many courts. The main advantages of these advancedeclarations are that they protect patient autonomy and reduce the degreeof uncertainty faced by healthcare professionals. [6 ]Civil Code of the Province of Quebec, art. It is possible that thejudge was influenced by the particular facts of the case. [66]Cruzan v. Downes, 1L.R.Q.B. Just as in the United State and Canada, the lawregarding a pregnant woman's right to refuse treatment is not settled. Although some commentators havesuggested that suicide requires an affirmative action and cannot becommitted by omission,[5] there would seem to be no reason why it couldnot. [12]Lanham, supra note 3, at 411-12. In following their religious faith, theybelieve that they are looking after not only the worldly lives of theirchildren, but also their spiritual lives. For instance, the operation of such a living willis suspended during pregnancy, giving greater weight to the interests ofthe fetus in life than to the interests of the pregnant but terminally illwoman in avoiding the prolonging of her life.[89] In contrast, the Uniform Rights of the Terminally Ill Act, drafted bythe National Conference of Commissioners on Uniform State Laws in 1985,provides a standard form for the recording of advance directives, such asliving wills, but does not restrict living wills to this form. Schulman, (199 ) 72 O.R. The only option to this life thathe was aware of was life inside an institution, where he felt he would beneglected and unloved. Sup. Critics of the eventual appellatecourt decision noted that a nondisabled person with such a history and whorefused any nutrition would have been diagnosed as suicidal and offeredpsychiatric treatment. In practice, however, this provision has been interpreted asnot affecting laws requiring military training for all men. The judgeapparently did not place much faith in then powers of medicine at that timeand ruled that the parents did not neglect their duty by failing to call"in a doctor to apply blisters, leeches, and calomel...."[39] Later cases,however, were not so lenient of parental decisions refusing medicaltreatment or so leery of medicine in general.[4 ] The early American cases also reflected an uncertainty as to how suchcases should be handled. Even when these requirements have been met, however, it is verydifficult for many observers to accept that a person has decided to endtheir life. This generalright to refuse lifesaving treatment is grounded upon traditionalprinciples of autonomy and self-determination with regard to medicaltreatment. 139. They believe that if theyconsent to medical treatment, they will be jeopardizing the eternalafterlives of their children.[36] There is no legal precedent in Australia concerning this issue. The only common groundbetween the opposing views on how to decide such cases is that the onlyconsideration in making this decision is the baby's best interests. 116. There are four generally acceptedelements of suicide under common law: (1) the person who intends to commitsuicide must actually die; (2) the person committing suicide must actuallyintend to kill himself or herself; (3) the person must have caused his orher own death; and (4) the first and second elements must occur at the sametime.[1 ] The real cause of death is the disease or condition from whichthe person is suffering. 579, 385 S.E.2d 651 (1989). A non-disabled person in such a mental state would not have beenconsidered competent to make a decision about refusing lifesavingtreatment.[77] Such thinking may also be a feature of a person whose religiousbeliefs include the inevitability of death under God's will. Suicide isgenerally associated with a sense of hopelessness and even failure on thepart of the patient. 53 (1868). In Cruzan v. Also known as advanced directives, thesedocuments are becoming more common as Americans become more aware of theissues involved in medical treatment and death. One of theNevada Supreme Court justices who dissented from the ultimate decisionratifying Bergstedt's decision to end his own life exclaimed that "[w]iththis kind of support, it is no wonder that he decided to do himselfin."[75] Critics have argued that Kenneth Bergstedt did not make an informedand rational decision to end his own life by having his respirator turnedoff. Sandford, 59 A. Common law and United States constitutional law have alsosupported the medical presumption that competent patients make their owndecisions.[64] In the United States, this right to refuse treatment wasinitially based upon the constitutional right to privacy, which wasextended to issues in bioethics.[65] Although most state courts have based the right to refuse medicaltreatment upon the generalized constitutional right to privacy, the U.S.Supreme Court has stated that this issue should be analyzed "in terms of aFourteenth Amendment liberty interest."[66] Originating from the DueProcess Clause of that Amendment, this liberty interest must be balancedagainst the relevant state interests to determine whether the individual'srights under the Constitution have been violated.[67] Although the Courtdid not decide the question in this case, it assumed that the Constitution"would grant a competent person a constitutionally protected right torefuse lifesaving hydration and nutrition."[68] This principle would seem to secure the right of informed andcompetent persons to effectively end their lives by refusing lifesavingtreatment. 872 (199 ). The Quebec Act[59] does notstate whether a competent involuntarily hospitalized patient has the rightto refuse treatment. In making any determinationconcerning whether or not to end lifesaving treatment for an infant,"quality of life" considerations are irrelevant under common law.[3 ] Advances in medical technology, however, have threatened to overwhelmthe current state of the common law. The reasoningbehind this ruling was that military training was thought to have nothingto do with military training, even the religion in question prohibitedparticipation in military activities.[43] In another case, it was heldthat Article 116 did not prohibit the enactment of laws which prohibitedthe advocacy of religious doctrines which were prejudicial to theprosecution of the Second World War.[44] Thus, this provision may belimited in scope, depending upon the circumstances. Cas. He alsopetitioned the court for a declaration that his actions would notconstitute suicide. Connecticut, 351 U.S. 426 (Que. With regard to other situations,however, it is generally accepted that every competent adult has the rightto make a decision as to treatment so long as enough information isprovided about the treatment to enable the person to make an informeddecision.[1] The main problem in this area is where the patient is not consideredmentally competent, for whatever reason, to make such a decision. v. Thus, somecourts have taken an admiring view of individuals who refuse treatmentbecause of their religious beliefs. This means that in the absence of any legislativepronouncements, competent adult patients in Canada have a general right torefuse lifesaving treatment. v. 113 (1973). 199 ). However, Ms. Bouvia's disabilities led the court toregard her suicidal intent as non-indicative of any underlyingpsychological problems.[71] Elizabeth Bouvia's case illustrated some of the concerns ofacquiescing in the wishes of persons who see no palatable alternative todying. The Lordsnoted that other courts deciding similar cases had followed a "bestinterests" rule: what would be in the best interests of the patient? Massachusetts, 321 U.S. There is little in the way of legalprecedent in Australia for these cases. Especially in the United States, casesinvolving disabled patients who wish to end their suffering have touchedoff emotional public debates over the parameters of personal autonomy. Bergstedt, 8 1 P.2d at 637 (Springer, J., dissenting). at s. Althoughthe hospital staff was of the opinion that the treatment was notappropriate, the court stated that no one has the power to determine that achild's life may be ended, especially on the basis of quality of lifeconsiderations or worth.[32] The precedent value of this case isquestionable, since it was decided at a lower court level and in view ofsome decisions in other common law countries. Williams, (1912) 15 C.L.R. 14 Criminal Law Journal 4 1-3 (199 ).Molloy, William, Virginia Mepham, & Roger Clarnette. Constitutional protections. [73]Bergstedt v. One of the traditional andimportant elements of suicide, as discussed earlier, is a contempt forone's own life. There was some confusionwhen the law was being debated as to whether the principles enunciated inits provisions were compatible with Catholic religious doctrine regardingsuicide and medical treatment. at 4 9-1 . In fact, they believe that in refusing treatment,they are benefiting their children. At this point, some members believed that the duty to continuetreatment vanished since no benefit to the patient could result from itscontinuance.[24] The problem with this approach is that it requires thecourt to make a determination as to general accepted practice in themedical community.[25] The members rejected the principle of "substituted judgment," ortrying to determine what the patient would have desired had he beencompetent. While a person can choosefreely to adopt religious practices once he or she is old enough to make acompetent decision, the state has an interest in seeing that the childreaches that age of maturity.[84] Consequently, states are free toregulate faith healing as it is applied to children. 199 ).Nancy B. [81]Id. Government agencies began going to court in order to getjudicial orders which essentially denied parents their traditionalauthority over their own children. Themedical treatments proposed by doctors would not save her; they could onlyprolong her life of physical and emotional pain. Pierson, 68 N.E. This area of the law, however, is very controversial for some obviousreasons. 243 (N.Y. 847 (1981);Singer & Siegler, Elective Use of Life-Sustaining Treatments, in Advancesin Internal Medicine, 36 Yearbook of Medicine 57-59 (1991). She wanted to "befreed from slavery to a machine as her life depends upon it." After this,the disease would "take its natural course."[53] From these initialremarks, it was clear that the judge believed that the woman's death wouldresult from a natural process, rather than from an act of suicide. [47]See Nancy B. Certainly,many seriously-ill patients seek solace in religion when their depressionabout their condition becomes otherwise unendurable. Mepham, & R. [32]Re F; F v. Competent adult patients would likely beallowed to make such decisions and have these decisions protected underArticle 116. In the other situations,however, it is impossible to determine how the patient would have made sucha decision. In any event, this doctrine me If this paper is not what you are looking for, you can search again: Search for: or Click here to request an essay written just for you.