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Write 33 pages thesis on the topic critical analysis of the legal principles governing the withholding/withdrawal of life sustaining treatment in incompetent adults and neonates.
Write 33 pages thesis on the topic critical analysis of the legal principles governing the withholding/withdrawal of life sustaining treatment in incompetent adults and neonates. Of late, withholding or withdrawing of life sustaining treatment has been seen in the light of Human Rights Act 1998 without any change in principles. And practical guidance on this aspect has been issued by General Medical Council in August 2002 and this has been declared as lawful by the court of appeal in 2005. Doctors cannot afford to cross the boundary and act with the intention of ending life of a patient. Withholding or withdrawing life support or treatment is therefore guided by the two principles.
It should be in accordance with the opinion of a competent authority, and 2) should be in the best interests of the patient. It has been already endorsed by the House of Lords that a treatment includes giving of nutrition and hydration by artificial means (ANH)and also such an act is also contra indicated which risks are weighed against benefits under the prevailing circumstances. Hence ANH need not be in the best interests of the patient always. It can be lawfully discontinued or withheld along with other treatments. However in such circumstances declaration of its lawfulness have to be sought from a competent court in every case especially when a patient is in persistent vegetative state. In the case of physiologically stable patients, great care should be had before withdrawal of ANH especially when there is a difference of opinion within the medical team or between the team and patient's family. Second opinion and/or advice of the clinical ethics committee should be obtained as a precautionary measure. In extremely difficult cases, court should be approached to make an objective assessment as to the patient's best interests though it is not a legal requirement.3 Doctors are not immune form criminal liability in the course of their clinical practice. Conviction will be made on the basis of the presence of the elements of actus reus (unlawful act) and mens rea (guilty state of mind) which should be proved beyond reasonable doubt. It does not mean beyond a shadow of doubt. A remote possibility should not be capable of creating a reasonable doubt. Courts always advice about the standard maintaining that the jury should be satisfied in order to be sure. In criminal matters, rules of evidence are strictly followed though the jury can be satisfied by circumstantial or deduced evidence. However the prosecution must proceed with the presumption of innocence and burden of proof lies with it to prove the case beyond doubt.
Battery
As for battery, unless there is indefensible actions on the part of the doctors, courts do not hold them liable for battery in matters relating to consent to medical treatment. If consent is obtained by fraud and misrepresentation, criminal liability will arise.4 Generally in matters of consent to medical treatment other than as a result of fraud will be decided in civil actions claiming damages for negligence.
Homicide
Homicide is another criminal liability which arises out of killing of a human being seen in the context of infant as a life distinct from its mother. Murder and manslaughter though are homicide can be different depending on the state of the mind of the perpetrator. The death should be due to an unlawful act.
