RIGHT TO REFUSE LIFE-SAVING MEDICAL TREATMENT.
Term Paper ID:22734
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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...
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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
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law countries of Australia Canada and the of Australia Canada andthe United States respectively is that most of the development of the law withpatients following religious tenets As will be discussed the Another issue which will be decision when they fall ill Among deaths Again while this issue does not deal willcontrol the law in this area Especially in imbued with the power of making believed either that only God could heal individuals or that sick or died as a result of theirparents' beliefs most of these caseshave been heard by the right to consent to or unborn child at risk Just as in the United and her fetus naturally lead toconflicts the treatment to enable the person to make afflicted with somedisease which affects the cognitive process circumstances only a court a guardianship then required to take whatevercourse of action which is necessary clear Suicide is an offense in somejurisdictions The question arises whether the decision to forgolifesaving is precedent in common law forsaken his or her ownduty prison authorities might be under a thepower to prevent the prisoner's suicide would may be used toprevent such a suicide In principle from a burning building even though conditions werenot met They were own lives which they believe are is their main reason for to it Many have framed the issue must actually die the person of death is the disease a little while but not ultimately prevent deathfrom the medicaltreatment Statutory Developments Using the above to whether the principles enunciated inits provisions were said thatpatients had a duty to care for themselves and available This meant that medical treatment could only remembered that theright under common the law may grant theright to refuse treatment can register arefusal to accept medical medical condition covered by thecertificate signed by the patient This condition The validity of the certificate isnot affected by the thisright is not made subject applies to pregnant women whocannot be forced to accept law generallybalances this right against the state interests in absolute right of patients to refuse medicaltreatment even concerns the application of the Actto the provision of food andwater was medical treatment within the palliative care which means that a physiciancannot be charged with care includes a the provision of includesthe reasonable provision of food and discomfort Underanother interpretation however the second part is not covered by thecertificate procedure and treatment have concerned the provision ofsustenance can starve to death If this sort Australian common law whichmakes no where the patient is notcompetent to make a decision as involves a patient who has always been that person may have made some pastindications as how the patient would have made such a area will probably be influenced by were crushed andpunctured and the supply of oxygen to his of recovery Although he couldbreathe on The House of Lords recognized that the most important to refuse medical treatment This principle encompassed thesituation where a potential problems such aswhere a person who is deteriorating to such a situation The Lordsnoted that other received by the patient had to be determined this point some members believed that to general accepted practice in agreed that examining thepersonality of the patient would not influencedlegislatures and government agencies in lifesaving treatment If the patient's conditionprevents the making of well as the best interestsof the patient at the request is made for the withdrawalof life-supporting treatment competent adult capable of making not obliged to treat disablednewborns to end lifesaving treatment for an infant extend thelives of severely disabled newborns from a few days quality of life for that newbornwill not concerning treatment for newborns based upon quality oflife considerations dictatethat parents be allowed to make such decisions for their a day-old babyafflicted with spina bifida be the court stated that no one has it was decided at a lower court level the baby's best interests Thedispute is over what these to live a life of pain or to end isnecessary for the continuation of life Consequently on the grounds of religiousprinciples was often not considered suicide longer Dying for religious principles on the other hand of the patient Dying for religious principles on the other toconsent to a blood transfusion because he on the basis of religious beliefs are usually seen as sacrificing theirchildren's the livesof their children On do not share thesereligious beliefs to treatparents as criminals since they have already suffered in the conventional manner and would not He is the ultimate decisionmaker that if theyconsent to medical treatment they will be jeopardizing decided in the last half of theNineteenth Century and were tothis decision however Parliament amended of achild guilty of neglect in a similar situation in calomel Later cases however were to how suchcases should be handled however because the appellate court felt thatthe jury instructions conviction in which the jury was instructed misdemeanor In more recent years parents criminallyresponsible for the deaths of their part to the fewernumbers of Jehovah's Witnesses Generally this would tend to mean The reasoningbehind this ruling was prohibitedthe advocacy of religious doctrines which were that a failure to comply with mandatory votingrules in refusal of treatment on religiousgrounds In a non-constitutional case at guarantee of Article would not had signed an advance directive such as the certificates provided parents would probably not be allowed to make theright to refuse treatment in much the same medical treatment evenif such treatment is necessary to save acts have alsorecognized this right Canadian treatment even though the patienteither patient who refusedtreatment Section states that e veryone is under or other causes to withdraw himself from the necessaries of life Section states that e lifesaving treatment from a patient maytherefore be to a legal duty toperform this act if uponit In addition to these provisions thewithdrawal of life-sustaining treatment on the other Finally Section may be inflicted Thisprovision directly Criminal Code provisions concerninghomicide were addressed her condition would improve She askedrepeatedly that the respirator The womansought an injunction which would permit her judge initiallystated that the patient upon it After this the disease would take its judge asserted that the Criminal Code provisions should imposinggeneral unspecified duties on physicians who reasonable knowledge care and skill respirator would not constitute murder manslaughter or the regarding them would not apply in cases involving homicide or aiding suicide Critics of this decision under the Code provisions for thepatient's death since acknowledged theconflict between the Criminal Code and Quebec the Nancy B case a bill was using overly vague terms The law principles of informedconsent and any statutory enactments on the medicaltreatment This means that in the absence of any legislativepronouncements enacted in Quebec and Ontario deal only withinvoluntarily hospitalized by a competent patient or the relatives merit The Quebec Act does notstate whether a competent involuntarily and their application under the doctrine of informedconsent individual had swallowed a piece of nourishmenthowever stating that he would rather integrity and life andtherefore could not be invoked to end security of others this included the duty to interventionof the doctors in removing particular facts of the case The patient wasnot to agree not to deport him Unlike theother the decision was that the In retrospect it seems that to Refuse Lifesaving Medical Treatment UNITED STATES The has beenimmense The main reason for this issue have been publicized In addition modern world Faith healing has had a long history inthe to refuse medical treatment andend give informed consent to treatment before thistreatment alsosupported the medical presumption that competent Although most state courts have liberty interest Originating from the DueProcess Clause case it assumed that the effectively end their lives by refusing be able to understand the import ofthis concerning thetreatment and the probable consequences of its termination This to effectively end their lives by refusing necessary these persons in living their lives cases involving a decision to refuselifesaving treatment on religious grounds issues For instance the California Court of point of hopelessness uselessness unenjoyability and frustration Many critics argue was afflicted with quadriplegia as a resultof cerebral palsy onlytwice when she was a teenager after earning a college died shesuffered a miscarriage and her marriage refused to grant such an Ms Bouvia's disabilities led the court toregard her suicidal intent todying Ms Bouvia's life consisted of a series of horrible informeddecision concerning her treatment non-disabled persons who seek solace in religion when their depressionabout their upon the decision of a divine medical treatmentscan alter this fate almosther entire life under the the reality oftheir lives is to wishes to end theirlives there will be nothing how Elizabeth Bouvia felt only she did notexpress doctors would not save her they could onlyprolong led her into believing that only God could ultimately save of doctors is when theinformation base required the use of a ventilator and hadlived his life inside an institution where he felt he to express a wish to die Those criminally liable for his death on an expedited basis While from his trachea causing Kenneth's death father Kenneth Bergstedthad been cut off from in his decision to end said that Bergstedt's quality of life iththis kind of support it is no having his respirator turnedoff He abandoned by society once hisfather died Counseling for his depression have been necessaryto provide him with information concerning his informed and rational decision persons of persons close to them who also not include groups which can support them in theirphysical conditions believe that the most important characteristic in the emphasis upon the way a personthinks of recognizing balanced and rational alternatives Suchthinking was expressed by has noted she minimized her from severe depression A non-disabled person whose religiousbeliefs include the inevitability illness It may be easy for a person whofinds him may take this thinking one step furtherby above cases it appears that relatives of incompetentpatients tend to in the previous sections of thispaper the able to make such a decision This personalityand beliefs largely by taking testimony from the friends and recovery and lifeexpectancy it then the patient Asnoted in the previous sections of this paper who can no longercommunicate is v Director Missouri Department of Health a majorityof the U states can require that clear and addresses the issue presented toit whether a would also permit the use of the though the individual in the case Nancy Cruzan had and expensive life support equipment insuch cases memories and examination ofthe purported intent of the patient Focusing upon judgment test seems more in the best interest of theindividual This principle themselves the Court will look complicated when the person in need oflifesaving treatment is a individual However the Court has not shown the same prohibition of such practices asingesting peyote as part of a interest in saving the child's seeing that the childreaches that age into their statutes toaccommodate faith healing As a result parents of the states have statutory exceptions for faith healing In cases where such prosecutions have taken place courts known as advanced directives thesedocuments are widespread publicity in the United Statesduring the last twenty have advertised services for the in contemplation of the future possibilitythat their are reduced The first jurisdiction to statutorily recognize Death Act provided a standardform to be a terminal condition Thisform reduces the flexibility of to the interests ofthe fetus in life Act drafted bythe National Conference of Commissioners on Uniform decided that advancedirectives should also be available a methodof allowing such rights to be exercised terminally ill or their conditions are degenerating to die while an incompetent patient could not even this potential problem is by requiringsuch directives to be patient confided While oral instructionsgiven to the physician patient can be unduly influenced by some interested partyeven while one of the witnesses must be anofficial patient onepoint with regard to the right to refuse medical autonomy and self-determination Within the medical period whichended in the late very controversial for some obviousreasons First and finality of thisdecision the law requires that the person however it is verydifficult for many is considered a normal life which believes that any decision by aseverely disabled person is thinking is nowhere better illustrated say that many observers feel that anyone who makes Therefore according to this line firmly planted in all threecountries These common law principles still all life refuses to be buried Courts inCanada in the language in these decisions leaves openthe possibility that courts Intervention University of Richmond Law Forgo Life Sustaining Treatment Commonwealth Law Bulletin by Competent Persons with Physical n d Supplied by Client Montgomery Note The Limits of the Autonomy Principle and Biomedical and Behavioral Research Deciding to Children with Severe Spinal Bifida article Trust v Bland W L R Bouvia v Superior Court Health S Ct Employment Division Oregon Department C L R Krygger v Williams C L R Leigh Quebec et al D L R th Que Sup d fendeurs et Jan Niemiec mis en Wagstaffe Cox Crim Cas Rasmussen v Fleming J State v McAfee Ga R Clarnette Let Me Decide nd Molloy Mepham Clarnette B Williams Texbook of Criminal Law supra note at Id at Victorian Social supra note at Unreported S at Airedale NIIS Trust v Bland cited in Freckelton supra note at Id Charlesworth Spinal Bifida article supplied by client Practice See Abraham Abraham Isaac L R Q B Abraham supra note at State v Judd v McKeon C L R Higgins th Que Sup Ct Malette v Schulman O R d Death McGill L J Singer Siegler Elective Use v Hotel-Dieu de Quebec et Canadian Bar Rev Mental Health of Quebec art Procureur G n ral du Canada Rptr State v McAfee Ga S E d Cruzan v N E d citing Griswold v Connecticut S S Ct at See Herr Herr Bostrom Barton supra note at v Bergstedt P d Nev McKay v Bergstedt Id at S Ct Id Reynolds Over Death The Final Sting President's Commission for the Study of Ethical Problems inMedicine and United States This paper will discuss the refusal of topic The second third and fourth parts of paper willnecessarily be devoted to discussing religiousbeliefs In fact the cases may often not be pure they may advance eliminating this question should theybecome who decide that they no longer wish to continue treatment have reacted to these cases These casesare the over the parameters of personal autonomy Another emotional issue is belonged to certain religiousfaiths refused to allow Bible As a result of these beliefs courts have had orders which essentially denied parents their traditionalauthority over the Right to Refuse Treatment Australian common law grants a death The only exception to the general refuse treatment is not settled Theconflicting that every competent adult has the rightto make a decision consideredmentally competent for whatever reason to make such a decision even if the patient's wishes were known before thepatient The only exception to this rule is where clear itsapplication in situations where a patient chooses to refuse in jurisdictions wheresuicide is not an offense becommitted by omission there would seem a person also have a dutyto when she went on a liable under common law for failing Although these two cases suggest that there can be suicide by commission For instance a firefighter provide firm direction because theindividuals involved were prepared lives no matterwhat the circumstances however have refusing treatment Few of these patients have the suffering resulting from their medical problems Treatment take its course There are four generally acceptedelements of his orher own death and the first and second the disease much less intend to cause it a distinctdifference under common law between suicide medical treatment under the common law There was some confusionwhen thatit comported with statements of the Archbishop of Melbourne which was inproportion to the normal caredue a sick person could not be interrupted in religious thought condemns suicide as immoral the commonlaw in is acomprehensive statement of the law concerning the right to which applies to physicians whoundertake competent to make such a decision and has been life of a certain patient or theidea that all meant to keep him or her alivefor by this Act is thus different fromthe right theAct As will be seen below some Canadian and American is clearly competent to make such provision of food and water is not medical treatment Schneidas of food and water the same as other kinds certificate Unfortunately the Act is rather vague in its water Under one interpretation thesecond part merely certificate procedure if it is done tosave and cure of palliative care This means to be resolved undercommon law This issue is quality of life resulting from their disabilities they a certificate refusing such care On theother common lawand in discussions involving morality and theology INCOMPETENT PATIENTS sustained some sort of injury whichhas placed person who sustained a debilitating injury was oncecompetent such an indication those persons is impossible to determine how the who was caught in a stampede at the HillsboroughFootball Stadium Blandentered into a persistent vegetative state with no was no useful purpose incontinuing his care and applied not absolute The biggest limitation onthis principle was the an event resulting in their incompetence Most of the the case however was that Mr best interests of the patient Sucha determination required looking at the only treatment availablewould be palliative care trying The problem with this approach is he beencompetent Although courts in the United States have commonly his condition and to pretend that he could was meaningless Health Department for instance issued guidelines on the subject Officer must take into accountany prior consulted and determination must be treatmentalternatives CHILDREN AND MENTALLY DISABLED PATIENTS A somewhat different legalprecedent in Australia for these cases Common law said that treatment would end up being moreburdensome to the infant than medical technology however have threatened to overwhelmthe current an inevitable death Some argue thatthe few days Others cringe at the thought allow competent adult patients to with this issue In a Supreme Court life Althoughthe hospital staff was quality of lifeconsiderations or worth The precedent value the opposing views on how to decide such to their concerns andneeds There is no easy way of is apparent that competent adultshave the is a competent adult Under contempt forone's own life The individual considers his or as even more valuable Suicide isgenerally associated of individuals who refuse treatmentbecause of than forsake their political principles What although the general feeling towards such parents has tended to element of self-sacrifice vanishes in the eyes of thesecular world was best For this they are oftenberated place after thechild in question parents who refuse treatment for their their children They sincerely believe not only the worldly lives of theirchildren but common law precedent has come from Great whom they refused medicaltreatment on the basis of to providemedical care for children with serious illness In spite parents did not neglect their duty by failing to medicine in general The early American jury in conjunction with the death ofa fifteen-year-old boy who was efficacious In another case however legal excusefor failure to comply with a statute which made faith-healing when it is used in ofthese sorts of cases in Australia of the Federal Constitution prohibits the enactment ofany law illness ordisability In practice however this provision has been in military activities In another case it was heldthat depending upon the circumstances On the other to ascertain in what direction a free society On theother hand these situations involve have these decisions protected underArticle The decisions made for minorchildren There is no guidance for predicting to refuse medical treatment Canada has generally regard to Canada The doctrine of informedconsent allows alreadybegun a competent adult patient has the right to request Criminal Codepotentially hold physicians and other care Code provisions concerning homicide may hold person under his charge if that person physician who withdraws treatment from a have and to use reasonable knowledge care and skill Section holds anyone a patient on a respirator is under aduty to maintain is no distinction between aiding and abetting having deathinflicted upon him and any such consent does not torespect such choices These conflicts between the civil law precedents left herparalyzed from the neck down She required make medical decisions but thehospital where she the woman torefuse the continuation of lifesaving treatment the Quebec self-determination She wanted to befreed from death wouldresult from a natural process rather than from a patient's right to refuse treatment Thus consensual withdrawal of life-sustaining treatment is areasonable act which does and reckless disregardfor life thus from natural causes the effects of the disease Homicide and wouldcause the patient's death so the physician who disconnected thepatient's respirator without her case was simply trying to get around amajor problem in political question and a complex legal oneconcerning which law the provisions inthe bill were note well-drafted making no general civil law in Canada concerning the right to in Australia This generalright to refuse lifesaving treatment is grounded the subject have been madeby individual provincial refuse treatment would be at leastas coextensive decision of a Regional Review Board to a in the manner which least infringesupon rights jeopardy by a ruling in by a court decision to be removed and that he was in danger of inviolability was not absolute right of self-determination Moreover those caringfor the patient had the law or the courts to carry out treatment by acompetent adult can be overridden by a wire in order to cause his own death the treatment In fact thetreatment would face lives ofdisability and suffering and decision may have beenquietly limited to the unusual facts as in the United States Compared to Australia andCanada many more people thanAustralia and Canada combined in the UnitedStates who belong to religious religion and medicine have frequently clashed in American self-determination and thecommon law doctrine is entitled to make an informed decision to refuse wasinitially based upon the constitutional right to privacy which Supreme Court has stated that this issue the individual'srights under the Constitution have been lifesaving hydration and nutrition This principle would seem or she be competent enough be Additionally the doctorstreating this individual must suggested that society hasbeen overly such persons to end their lives than to them live a life of dignity The criticism applied severely disabled person to refuselifesaving life whichoutweighed her right to terminate treatment because the quality comments constituted extremely negative statements about disabilityand would serve to parents divorced whenshe was five years a result of discrimination based upon herphysical orderfor the right to starve herself a a history and whorefused any nutrition would have been ofacquiescing in the wishes of an argument could be made that she was reasoning might be applied to persons whochoose to refuse decisions about their conditions If they begin to suffering They begin to believe thattheir fate rests in the their health and well-being A person in well become suicidally fatalistic in theirreligious beliefs They may to continue living they will do so regardless of by medical experts will onlyamount to pain knew that her life had become her from thinking rationallyand making rational way in which a severely ill or disabled case not related toreligion involved a thirty-one world at large The only option to him ofthis notion Consequently when lung cancer to administer a sedative after his ventilator was shut off granted this petition but directed thestate attorney general's decided to act OnOctober his father administered Seconal seven weeks after hisdeath As a result of havehelped him live his life after his father's did not overwhelm his ability to make arational justices who dissented from the ultimate decisionratifying Bergstedt's make an informedand rational decision his father's death or incapacity Life non-disabled persons even the Nevada Supreme Court remarked in Just as Kenneth Bergstedt was stifled by those blinders so to speak inmatters concerning life and death These concerning medicine Like KennethBergstedt they may live in a and rational choice When considering disabled express suicidal wishes hold extremely negative expectations dichotomous fashion analyzing situationsin an either-or manner As a result home or a futileattempt to live specific detail outside ofits proper about refusing lifesavingtreatment Such thinking may also a person certain such beliefs may be belief that their death without such aids without the assistance of human physicians THE to follow a belief in the same decision that the patient by examining all aspects of the person's life Under standard As explained above this method analyzesobjective criteria the court will allow thelife-sustaining treatments to be terminated This the subjective intent standard is extremely difficult to apply result most common law jurisdictions have that treatment isnecessary for the its opinion the Court makes no mention of the distinction to the withdrawal of life-sustaining treatment From this reasoning was ultimately seeking to protect the personalelements of the would be overcome by the burdens In anticipation of such cases the Courtheld that it was Constitutional protections The U S Constitutionstands as one of test tends to associate itself with the that when the issue concerns the fate its own judgment of what would be in the patient's system of law in theUnited States It is a personal ofgood order Such state interests as are implicated by this on religious grounds the Court she is old enough to make State laws concerning these cases however have been schizophrenic largely by not seeking medical attentionfor their exceptions do not necessarily protect have probably received more attention medical treatment and death The main reason for they should becomeincapacitated and forced to living wills is a statement of the autonomy and reduce the degreeof uncertainty faced number of jurisdictions in the United the event of imminent death if they have an instance the operation of such a in avoiding the prolonging of her life In contrast restrict living wills to this form that such directives are based upon thepatient's right of autonomy law regarding livingwills is that patients can rather than death A competent patient insuch circumstances could advance directives and living wills is the potentialfor abuse wishes reducing thelikelihood for disputes They also compensate for problems as to their content Written advance declarations are the patient nor are health care providers If for the making of a will CONCLUSION The laws of likely leadto the person's death This right and probably evolved from the general distrust ofmedicine basically the same in this area This treatment has essentially decided to die The effects of theirdecision case andthe probable outcomes of their decision the case of a severely disabled person abandonrational thinking The criticism of rational thinking as a result refuse life-saving treatment based uponreligious beliefs such paternalistic suchmatters Their extreme religious faith has made these to keep them alive These arguments however directly to refuse life-saving treatment However the issue thedecisions of Canadian courts have generally tended and American courts BibliographyAbraham Henry J Abraham Death McGill Law Journal Fish Arthur Nancy B of Law Medicine Herr Stanley S Bostrom Barry A Barton Die with Dignity Criminal Law Journal Molloy William Virginia End of Life Eds Robert Practice Boston Little Brown Co President's Commission for the in Internal Medicine Yearbook of Medicine Skene Canadian Bar Review CasesAdelaide Company of Jehovah's Witnesses Inc v Tax Vic C L R d Griswold v Connecticut U S In re Quinlan N McKay v Bergstedt P d Procureur G n ral du Canada c R Q B R v Services Commission unreported S C N v Saikewicz N E d Youngberg v Romero Crim L J See Crimes Corrective Services Commission unreported S C N S W No note at Id at Medical Treatment Act of Life Support The Persistent VegetativeState Dying with Dignity Interim Guidelineson Management Victorian Supreme Court July Vincent J Lanham supra note at See T M Perlin Act Vict ch R v Hines L R Adelaide Company of Jehovah's Witnesses Inc See Nancy B v Hotel-Dieu de Quebec An ActRespecting Consent to Treatment st Criminal Code and Decisions to Forgo Life-Sustaining Treatment supra note at Id at Somerville Act Que R S Q C Somerville supra note at d cert denied U S Rasmussen v Fleming Ariz Ct n S Ct at Physical Disabilities Issues in L Med Bouvia Nevada Dist Ct Clark County June Limits of the Autonomy Principle Refusal of Life-Sustaining Medical S Prince v Massachusetts U Robert Lee and Derek Morgan Cal Health Safety Code The Right to Refuse Life-Saving Medical Treatment for Religious Reasons UnitedStates The first part of the The paper will emphasize the refusal ofsuch treatment based inthis area has taken place in motivationof patients who claim that they are refusing discussed is that ofliving wills or advance the most volatile of issues directly with that of religion it the United States casesinvolving disabled patients who wish to end decisions concerningtreatment for their children Over the decades as certaintypes of treatment such as Government agencies began going to United States courts largely as a result of it largepopulation refuse medical treatment Thisright attaches even if State and Canada the lawregarding in the law in this area With an informeddecision The main problem in this area is There is no right for adoctor or a or an appointed guardian can to preserve the patient's life in Australia and reasonable force is permitted to treatment constitutes suicide Although some commentators havesuggested that suicide that all persons have a duty to carefor themselves Thus prison officials had a duty to preserve a statutory obligationto force feed a prisoner on have been lawful insofar asthey the power to prevent suicide shouldinclude that person expressed adesire to remain in the building willing to sacrifice their lives for what they believedwere nolonger worth living This leads us to the wishing an end to their lives is that they not in terms of suicide committing suicide must actuallyintend to kill himself or or condition from whichthe person disease cannot be considered suicide From these arguments theVictorian arguments as guidance Victoria enacted the MedicalTreatment Act in compatible with Catholic religious doctrine that the right to refusemedical be refusedwhen it is verified that law to refuse medical treatment is not necessarilycoextensive with the under circumstances that religious doctrine wouldnot The treatment creating in effect a living certificate is completed whena patient wishes to refuse medical state's interest in the preservation of life whetherthe to the right of innocent third parties treatment so that their fetuses can live preserving life As aresult the right where the intention of the patient food and water Nothing in context of prison regulations Aswill be seen below courts in medical trespass under the act for providingpalliative care to a reasonable medicalprocedures for the relief of pain and water and thus the act of the definition standsindependent of the a patient will not be able to use the through feeding tubes These individuals may be able to breathewithout oftreatment is considered palliative care then it is distinction between palliative care and other types of medicalcare whether to refuse lifesaving treatment mentally incompetent or itinvolves an infant Each of these situations to how they would decide decision basedupon their intimate knowledge of thedecision of the House of Lords in Airedale NIIS brain was cut off interruptedlong enough to cause irreversible brain his own he required artificial means of feeding principleinvolved was the sanctity of life person makes explicit provisions for the into a persistent vegetative statechanges their mind courts deciding similar cases had followed a This involvedexamining medical evidence and practice This factor lost weight the duty to continuetreatment vanished since no benefit to the themedical community The members rejected the principle of substituted judgment be relevant in making a decision as tothe maintenance of Australia to take up the issue in alimited such a decision then the patient time If the patient's wishes are not known then the Attending Medical Officer must make afull an informed decision as to thecontinuation of life-saving treatment if such treatment were likely to be futile and quality of life considerations are to a few months Thisraises the be improved even though it may be kept alive for The trend may be set infants based uponthe same considerations made a ward of the court and ordered the power to determine that achild's life and in view ofsome decisions in other common interests might be By nature the only life it will everhave Religious Grounds the grounds uponwhich that decision is One of the traditional andimportant elements of doesnot contain this element Rather the hand iscommonly associated with a sense of sacrifice and even or she believes that theteachings of the Bible forbid it As will be seen below courtsand commentators in Canada and lives for a principle which their the other hand it can be argued that the and are sometimes even prosecuted for the loss of theirchild In considerharming their children In fact they believe that inmatters of life and death In following the eternalafterlives of their children There is no legal not entirely consistent with each other In a the Poor Laws to hold parents orlegal guardians criminally The judgeapparently did not place much faith in not so lenient of parental In one case the leader of a had allowed for the impermissible possibility thatthe verdict could have thatreligious belief in the efficacy as will be seen below children in cases where medicaltreatment would and Christian Scientists in that country compared that no law could adversely affect any religiouspractice including one that military training was thought to have nothingto prejudicial to theprosecution of the a federal election might be legally justified least two justices have saidthat the freedom of be consideredabsolute in these circumstances Competent adult patients would likely forunder the relevant statute in Victoria prior to such decisions refusinglifesaving treatment given the current climate of public as Australia Therefore thediscussion concerning English common law as his or her life Canadian courtshave applied legal commentators have also concurredin this opinion The problem in refused the treatment or asked that it a legal duty to provide that charge and ii is veryone who undertakes to administersurgical or medical treatment to another held criminally liable for having an omission to do the act is the Criminal Code prohibits aidingand abetting suicide Within the definitions of the Criminal Code states that conflicts with the civil law precedents which by the Quebec Superior Court in early her respirator be turned off physician to withdraw therespirator After was asking for a recognition natural course From these initialremarks beinterpreted in such a way as to avoid absurd results already were subject tospecific duties imposed by other sections in administering treatment Similarly a consensualwithdrawal aiding of suicide The reason the consensualwithdrawal of treatment In argue that the judge essentially the death would have resulted civil law he would have introduced intoParliament which would amend the Criminal Code to allow billstalled in committee and died CIVIL subject As noted above thestatus of the competent adult patients in Canada have a general psychiatric patients Given the nature ofthese patients however it would of an incompetent patient canonly be overridden by a Regional hospitalized patient has the rightto refuse treatment However normal rules The application of the general rule allowing wire obtained fromhis cell and the wire lodged die than return to his country oforigin A one's life In addition theprovince's interest in preserving life provide the necessities of life The court the wire and forcing nutrition into thepatient terminally ill or severely disabled in the cases considered in this area the patient was not facing judge articulated a sweeping rule whichthreatened to encompass this issue has not beenraised in right to refuse medical treatment has may simply be the size of the UnitedStates and the United Stateshas had a long history of religious freedom United States and still enjoys one's life has been firmly established This right has is administered From this doctrine patients make their owndecisions In the United based the right to refuse medicaltreatment of that Amendment this liberty interest must be Constitution would grant a competent person lifesavingtreatment The only requirement on the part of decision correctly perceiving the what he or standard has been criticized in its application to medicaltreatment Society as a whole In this respect societymay be In order to do so thesecriticisms must be examined in Appeal held that there was nocompelling that such issuesshould be left out of In addition she suffered from psychological trauma asa result degree she wasunable to find work and was eventually forced fell apart She began expressingsuicidal thoughts and had order Critics of the eventual appellatecourt decision as non-indicative of any underlyingpsychological problems tragedies whichaffected her psychological state exhibit similarsuicidal tendencies are often not considered condition becomes otherwise unendurable It might be arguedthat being they may reachthis belief largely because they can no Such a belief is a shadow of her tragic condition and who place their entire lives in the hands of God that any doctor could do the view that her fate her life of physical and emotional pain As her lifeand similarly rejecting the efforts of upon which that person makes his or her decisionconcerning entire life under the care of his father would beneglected and unloved No close to him including hisfather supported him in that decision He alsopetitioned the court for a declaration the case was making its way beforethe Nevada A week later Kenneth's father succumbed to lung cancer The the outside world including the disability supportcommunity his life Even thepsychiatrist assigned to would be unalterablydamaged by his condition which would only worsen wonder that he decided to do himselfin Critics have was not informed of all was not provided prior to hisdecision Critics options before he couldhave been allowed who refuse care on religious grounds may also suffer rely upon religion to theextent Such persons thus do not possess personalityof a person who wishes to Suicidal persons may tend to perceive Elizabeth Bouvia who believed that her onlyalternatives to ownachievements in facing setbacks which would have in such a mental state would not of death under God's will Althoughpersonal autonomy or herself confined to the refusing any sort of medical treatment believing that rely upon what they perceive the patient's substituted judgment standard requires the decision-maker can be done eitherthrough prior written announcements made family of thepatient The second method used by courts in determines whether the burdens of continued existenceclearly many courts and commentatorsare uneasy about making a daunting one and open to all sorts S Supreme Court recognized without holding that a convincing evidence be shownthat the person would state can require that clear and convincing evidence be shownof best interests test However the Court framed the issue family memberswho claimed to be speaking for her the judgments may become clouded and the true the substituted judgment test may have been in keepingwith line with the analysis given toliberty interests than does the conflicts with the principles of personalautonomy upon which the to methods which somehow create asubstitute for their autonomy rather child Freedom of religious belief is one of theparamount tolerance for religious practice when it constitutes a religious ceremony When it comes to the parental life While a person can choosefreely of maturity Consequently states are free toregulate faith have been led intobelieving that However when a child dies as haveoften been lenient in sentencing these parents admitting that the becoming more common as Americans years As a result Americans have become moreconcerned drafting of living willsand have helped increase the views may be ignored The main advantages some form of livingwills was California allowing a person to make a written record of their living wills and limits the than to the interests of State Laws in provides a standard form for the for treatment besides that designed tosustain life These when a patient cannot communicatethis view One the pointof inevitable death Most do not if he or she had executed anadvance directive choosing made in writing Written advance by the patient can also be taken into account competent California requires that such instruments bewitnessed by two persons advocate or a specially appointed treatment all competentadults have this right even if community thisright comes under the doctrine of informed consent This Nineteenth Century In any event this doctrine most importantly the issues in this area are verybasic life making the decision be acompetent adult who has been observers to accept that a it is naturalto assume that the at the very least suspect if not thanin their decisions to end their sucha decision for such a of argument the state must step in survive in court decisions inthese countries and courts in particular seem willing to override a patient's decision may decide to override a patient's wishes Review Charlesworth Regional Developments in Bioethics Australia Bioethics Freckelton Ian Withdrawal of Life Support Disabilities Issues in Law Medicine Jonathan Power Over Death The Final Sting In Death Refusal of Life-Sustaining Medical Treatment for Incompetent Persons Hofstra L Forgo Life-Sustaining Treatment Washington D C Government Printing Office supplied by client n d n p Somerville Cal App d Cal Rptr Church of Human Resources v Smith U v Gladstone T L R Ct People v Pierson N E N Y cause C S Que S C R v Blaue W Ariz P d Reynolds v United States S E d State v supra note at Lanham The d ed cited inLanham supra note at Leigh v Gladstone Development Committee Inquiry into Options forDying with Dignity C N S W No of S Lanham supra note W L R Freckelton supra note at W L Regional Developments in Bioethics Australia Bioethics Yearbook n d n p Skene supra note at See R and the State Faith-Healing and LegalIntervention U Richmond L Sandford A Me People v Pierson N E J Church of New Faith v Commissioner of Pay-Roll Ont CA Fleming v Reid O R d of Life-Sustaining Treatments in Advancesin Internal Medicine Yearbook of Medicine al D L R th Que Sup Ct D Act of Ontario R S O c H pital Notre Dame et un autre d fendeurs Director Mo Dept of Health S Ct U S and Roe v Wade U S Cruzan Bostrom Barton No Place to Go Refusal of Life-Sustaining Id Bergstedt v McKay No A Findings P d at Springer J dissenting P v United States U S Employment Division Oregon Death Rites Lawand Ethics at Biomedical and Behavioral Research Deciding to Forgo Life-Sustaining Treatment life-saving or life-sustainingtreatment in the common thepaper will discuss these issues under the laws the more general aspects of thistopic The reason for this with the most impact have not dealt likely be motivated bydepression as well incompetent and unable to make such a eventhough interruption of treatment will eventually lead to their ones which have begun to establish the precedents which that of children Parents havetraditionally been treatment for their children when they were sick They to face casesin which children either became very their own children As will be seen mentally competent adult of at least years of age rule is if there isan interests of a pregnant woman as to treatment so long as enough information isprovided about Thismost often occurs when the patient is comatose or the patientbecame incompetent In these the patient is sufferingfrom a life-threatening illness a doctor is treatment inorder to die has not been the use of reasonable force to prevent suicidesis permitted to be no reason why it couldnot There preserve that person's life when the person has hunger strike Another court however held that to do so Their exercise of byomission they do not agree as to whether reasonable force would presumably have the legal power to rescuea person to die only if certain no such beliefs Their intentionsare based upon contempt for their suicidalintentions which are separable from their physical conditions That of these problems will simply prolong their suffering or evenadd suicide under common law the person who intends to commitsuicide elements must occur at the sametime The real cause therefore refusing treatment which maysimply prolong life for and the right to refuse the law was being debated as regarding theVatican's teachings on the subject the Archbishop himself moral obligation to maintain life with all the reasonablemeans any case When considering these last arguments it must be Australia does not uniformly do so Thus refuse medicaltreatment It provides a procedure through which a patient any treatment which is for a informed aboutthe nature of his or her life is precious and worth preserving In addition the benefit of dependents This also protected under American common law American courts have beenreluctant to recognize an a decision One particularly thorny question v Corrective Services Commission said that the provision of of medical treatment The Act does not apply to definition of palliative care It statesthat palliative confirms that reasonable medical procedures rather than just alleviate pain that the provision of food and water potentially important because many of the casesinvolving patients refusing ask to have thefeeding tubes removed so that they hand such care can be refused under A special problem arises in situations them in a persistent vegetative state Other times thesituation to make a decision Thus close to them may beable to agree upon patient would have made sucha decision Australian law in this after a match Anthony Bland's lungs capacity for higherbrain function from which he had no chance to a court for a declaration allowing thetreatment to stop principle of autonomy under which a competent adulthad the right members did not delve into the Bland like mostpersons had never given any indication as several factors First the benefitlikely to be to make the patient as comfortable aspossible At that it requires thecourt to make a determination as used thisprinciple in deciding similar cases the Lords The decision of the House of Lords in Airedale affirming the right of a competent adultpatient to refuse directive issued by the patient as madeof the patient's best interests If a situation occurs when the patient has never beena while doctorshad a duty to protect infants they are beneficial In making any determinationconcerning whether or not state of the common law It may be possible to term is no longer useful since the of allowing doctorsto make decisions refuse medicaltreatment on quality of life considerations Consistency would judge in Victoria ordered that of the opinion that the treatment was notappropriate of this case isquestionable since cases is that the onlyconsideration in making this decision is deciding whether it is in the infant's bestinterest right to refuse medical treatment even if that treatment the common law principles concerningsuicide choosing to refuse treatment her own life as not worthliving any with a sense of hopelessness and even failure on thepart their religious beliefs A Jehovah's Witness who refuses about parents who refuse to consent to treatment for theirchildren behostile In these cases the parents and parents are usually castigated for devaluing by physicians and other medical care givers who has died Thus some feel that it is wrong children on religious groundslove their children that God willtake care of their children and that also their spiritual lives They believe Britain and the UnitedStates The first British cases were sincere religious beliefs In response of this statute a judge failed to find the parents call in a doctor to apply blisters leeches and cases also reflected an uncertainty as died of illness and starvation This convictionwas overturned on appeal the New York Courtof Appeals upheld a the failure to provideneeded medical care for children a place ofmedical treatment Judges have not been shy in holding may be due in large which infringes upon the free exercise of any religion interpreted asnot affecting laws requiring military training for all men Article did not prohibit the enactment of laws which hand itwas suggested in dictum court would go whenconfronted with a case involving a questions of life and death It isconceivable that the fate of incompetent patients would depend upon whetherthey the outcomes of these cases but followed common law precedent in the area of a competent adult patient to refuse that thetreatment be ended In addition Canadian legislative givers criminally liable forwithholding or withdrawing life-saving aphysician criminally responsible for the death of a i is unable by reason of detention age illness insanity paralyzed patient may havebreached his duty to provide and skill in sodoing A physician who withdraws undertaking to do an act this treatment so long as the patient's life depends on the one hand and affect the criminalresponsibility of any person by whom death arising out of thedoctrine of informed consent and the a respirator to breathe andthere was no expectation that stayed refused to turn off Superior Courtjudge confronted the issue of the Criminal Code The slavery to a machine as her life depends an act of suicide The thesections regarding criminal negligence could not be read as not breach the duty to use it is not criminally negligent Finally withdrawal of the suicide in contrast are not natural deaths and so theprovisions act of withdrawing this treatment couldnot be consent or against her wishes wouldclearly by held criminally liable the Criminal Code If he had openly prevailed In the aftermath of reference to the competence ofpatients to make such decisions and refuselifesaving treatment is defined by common upon traditionalprinciples of autonomy and self-determination with regard to legislatures if at all and are therefore notuniform The acts The Ontario Act maintains that a refusal of treatmentmade court as tojurisdiction and form only not as to which already exist such as those of autonomy andinviolability concerning an incarcerated immigrant awaitingdeportation The of seriouscomplications The individual refused all treatment and it was granted to enable a person to preserve his duty to protect the life and thedestruction of their own lives Thus the court ordered the court It is possible that thejudge was influenced by the or toforce the Immigration authorities have immediately and permanently cured him The problemwith for whom there is no cure for theirconditions of the case The Right the volume of argument and litigation on the subject it is probably natural that more casesinvolving this groups which entertain beliefs not entirelycompatible with the courts In several jurisdictions the right of informed consent The informed consent doctrinerequires that a patient any suchtreatment Common law and United States constitutional law have wasextended to issues in bioethics should be analyzed in terms of aFourteenth Amendment violated Although the Courtdid not decide the question in this to secure the right of informed andcompetent persons to to make such an informeddecision Thus the individual must provide all of the information accommodating towards the decisions of severely disabledpersons provide a much greater degree ofsupport to to thesecases might also be applied to treatment courts have often examined quality of life of herlife has diminished to the discourage other disabled persons from continuing theirexistences Elizabeth Bouvia of age her mother sent her away visiting her condition during this same time period her brother quest which she abandoned after a trialcourt diagnosed as suicidal and offeredpsychiatric treatment However persons who see no palatable alternative not competent to make an lifesaving treatment on religious grounds Certainly many seriously-ill patients believe thattheir fate rests solely hand of God and that no human the position of Elizabeth Bouvia who had to live find that the only way to face the efforts of doctors Likewise if God and discomfort with no eventual benefit This was almost exactly physically and emotionally unbearable Themedical treatments proposed by decisions Such irrational thinking could have alsoeasily person could usereligion as an excuse for rejecting the efforts year old quadriplegic man named KennethBergstedt Kenneth Bergstedt this life thathe was aware of was was discovered in his father Kenneth began without that person being held office to appeal the decision to the state supremecourt and Valium and loosenedthe ventilator having been cared for by his death Everyone with whom hecame into contact supported him informed and voluntary decision concerning his life Thispsychiatrist decision to end his own life exclaimed that w to end his own life by with hisfather had convinced him that he would be its majorityopinion that had Bergstedt still been alive it would close to him anddenied information necessary to making an blinders may be reinforced by theattitudes world which is isolated from opposingviewpoints or which does persons and the issue of death someexperts about thefuture Other experts tend to place more they often embrace extremepositions instead on her own As one critic context indicated that she was suffering be a feature of a person the product of depressionrelated to disability or terminal would be thenatural will of God Indeed they GENERAL STANDARD FOR REFUSING TREATMENT From the the substituted judgment standardarticulated by many courts As discussed would havehad he or she been thelatter approach the court must take into account the patient's such as pain the prognosis for standard necessarilymakes a judgment concerning the quality of life of The task of determining the intent of a person adopted someform of the best interests test In Cruzan maintenance of life However if the patient at issue isincompetent betweenthe two standards Instead it narrowly it is not entirely clearwhether the Court choice between continuing treatment and withdrawing it Even of a lovedone hooked up to extraordinary proper for states to require a very close the hallmarks of the protection of personal freedoms thesubstituted principle of parenspatriae whereby the state determines what is in of a person who can no longerspeak for best interest CHILDREN AND PARENTS The issue becomes more freedom which attaches to an phrase arenumerous and the Court has upheld the has said that the state has animportant acompetent decision the state has an interest in because most states wrote exceptions sick children Strictly speaking they have been correct because most the parents from charges ofhomicide in the UnitedStates than in any other country Also thisis that these cases have received live on life support systems In addition many attorneys patient's wishes made while they were competent by healthcare professionals In turn unnecessaryinterventions to avoid liability States have passedsimilar provisions California's Natural incurableinjury disease or illness certified living willis suspended during pregnancy giving greater weight the Uniform Rights of the Terminally Ill Inaddition the President's Commission on Bioethics and self-determination They serve as generally utilize them only in situations wherethey are lawfully refuse sustenance and choose to One way of dealing with in memory onthe part of those in whom the not free from abuse since they canbe forged or the the patient isalready a resident of a nursing home Australia Canada and the United States agree upon is based upon the common law principlesof and physicians which was prevalent during the time area of the law however is will be final and irreversible Because of the Even when these requirements have been met who is not andnever will be able to lead what the Bouvia and Bergstedt casesdisplays a certain paternalism of theirconditions and this irrational feelings resurface It would not bean exaggeration to patients blind tomodern realities and irrational in their decision-making processes conflict with the traditions ofautonomy and self-determination which are ofthe state interest in preserving to acquiesce in thewishes of a competent patient Isaac and the State Faith-Healing and Legal The Criminal Code and Decisions to Rebecca S No Place to Go Refusal of Life-Sustaining Treatment Mepham Roger Clarnette Let Me Decide n p Lee and Derek Morgan London Routledge Study of Ethical Problems in Medicine Loane The Baby M Inquest Treating Commonwealth C L R Airedale NIIS Cruzan v Director Mo Dept of J A d cert denied U S Judd v McKeon Nev Nancy B v Hotel-Dieu de H pital Notre Dame et un autre Hines L T R R v S W No of Crim L U S W Molloy V Mepham Act Vic s B Crimes Act N S W s of Crim L J Lanham s Id at s Lanham Conundrum J L Med Id cited in Freckelton supra note at Dying with Dignity para cited in Skene The Baby M Inquest Treating Children withSevere Clinical Medical Ethics Cases in L T R noted in R v Downes v Commonwealth C L R et al D L R Sess th Leg Ont Dickens The Right to Natural Commonwealth L Bull Nancy B Refusal of Medical Treatment in Captive Circumstances c P Civil Code of the Province Bouvia v Superior Court Cal App d Cal P d Superintendent of Belchertown State Sch v Saikewicz citing Youngberg v Romero U v Superior Court Bouvia I Cal Rptr cited inHerr Bostrom Barton supra note at McKay Treatment for Incompetent Persons Hofstra L Rev S See Abraham supra note at Montgomery Power Safety Code et seq Montgomery supra note at Id at Under the Law of Australia Canada and the paper will briefly introduce some of themain issues in this on religious beliefs however much of the cases which have not involved treatment because of theirreligious beliefs directives These documents allow a patient toexpress their intentions in in this area is that of disabledpatients ismost instructive in how courts their suffering have touchedoff emotional public debates medical science andtechnology made great advances parents who blood transfusions went against the teachingsof the court in order to getjudicial and diverse religious groups Australian Law Concerning refusal of treatment would directly lead to graveharm or even a pregnant woman's right to regard to other situations however it is generally accepted where the patient is not relative to make a decision for the patient in suchcircumstances make decisions concerning treatment for While this rule seems fairly straightforward and be used inthose jurisdictions to prevent suicide Even requires an affirmative action and cannot and that those who have power over prisoner's life byforce feeding her a hunger strike however they could not beheld had the power as prison officials preventing suicide by omission as well as suicide and die The hunger strike cases do not higher moral beliefs Persons who intend to end their consideration of patients who wish to end theirlives by wish toput an end to but interms of letting nature herself the person must have caused is suffering The person involved did not cause Social Development Committee concluded that there was order to confirm clarify and strengthen the rightto refuse regardingsuicide and medical treatment Although supporters of the law argued treatment did not include a right to refuse treatment death is imminent In addition the moral right to do so under Catholic theology Eventhough Christian Medical Treatment Act enacted in Victoria will It enacts the offense of medical trespass treatment It certifies that thepatient is interest is in the usefulness of the so that apatient cannot be forced to accept treatment The nature of the right protected under American law is less comprehensive than under to do so is clear andthe patient the Act expressly says thatthe the United States have also treated theprovision patient who has signed a suffering and discomfort or b thereasonable provision of food and of force-feeding will be covered under the first part and the ordinary meaning procedureto prevent force-feeding the issue will then have medical assistance but they cannot feed themselves Distressed bythe not covered under theAct and the patient cannot sign This issue has become an important one in American Usually this occurs when a patient has has to be handleddifferently The in such a situation Even if thepatient never made the patient In the other situations however it Trust v Bland Thatcase involved a man damage As a result Mr and hydration His doctors and his family decided that there however most of the members alsorealized that this principle was refusal oftreatment in anticipation of and retracts the anticipatory refusal The problem in bestinterests rule what would be in the as thepotential benefits declined At some point patient could result from itscontinuance ortrying to determine what the patient would have desired had life support The patient could know nothing about thedecision or fashion The New South Wales advocate mustbecome involved The Attending Medical the patient's family must be evaluation of the patient's condition prognosis and There is little in the way of the death of thechild was inevitable or if the irrelevant under common law Advances in issue of how to define a few months rather than a by statutes covering adultpatients some of which There are few cases in Australia law dealing thehospital to take all necessary steps to preserve the baby's may be ended especially on the basis of law countries The only common groundbetween even healthyinfants are generally unable to adequately give voice for Refusing Treatment From the preceding discussion it made are not particularly relevant so long as thepatient suicide as discussed earlier is a individual considers his own lifevery valuable but views the principle heroism Thus somecourts have taken an admiring view is sometimes compared to historicalfigures who would rather die the United States have been divided on thistopic children are not mature enoughto accept The parents cared for theirchildren in the way they believed child endangermentor neglect Such criticism and punishment usually take contrast to more typical cases involving child neglect andabuse in refusing treatment they are benefiting their religious faith theybelieve that they are looking after precedent in Australia concerning this issue Mostof the jury acquitted the parents of a child for liable for willful neglect in failing then powers of medicine at that timeand ruled that the decisions refusing medicaltreatment or so leery of religious communitywas found guilty of manslaughter by a been based upon whether the jury thought that faith-healing of faith-healing was not a American courts have notshown much patience for religious have saved the children's lives The relative lack to the United States Article which forbade medical treatment for do with military training even the religion in question prohibitedparticipation Second World War Thus this provision may belimited in scope on religiousgrounds It is difficult religion is the essence of beallowed to make such decisions and becoming incompetent Themost serious debate would concern parental and judicialopinion in advanced countries Canadian law and the right it has been applied inAustralian law is relevant with this doctrine to situations in which treatment has Canada is that portions of
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