1. Legalities in End of Life Care Conference 2015
Medical Ethics
Patrick Leonard SC

2. The Statutory Background
Formerly the Medical Practitioners Act, 1978
Section 69( 2) provided that :
“It shall be a function of the Council to give guidance to the medical profession generally on all matters relating to ethical conduct and behaviour.”

3. The Statutory Background
Now the Medical Practitioners Act, 2007.
Section 7(2)(i) provides that :
“The Council shall … specify standards of practice for registered medical practitioners, including the establishment, publication, maintenance and review of appropriate guidance on all matters related to professional conduct and ethics for registered medical practitioners …”

4. Case law on the Ethical Guide
O’Laoire v Medical Council (1995) – a guide may modify the test
Murphy and Prendiville v Medical Council (2008)
“I accept that the guide published by the Council is no more than that, namely a guide. It is however published pursuant to the provisions of s. 69(2) of the Act, which imposes a function on the Council to give guidance to the medical profession generally on all matters relating to ethical conduct and behaviour. It is not too much to expect that a doctor on consulting the guide would at least be apprised in general terms of what the Council understands professional misconduct to mean. Of course, one is not entitled to look for absolute precision in a guide. The notion of professional misconduct can change from time to time because of changing circumstances and new eventualities. It would be unreasonable to expect the Council to publish a catalogue of the forms of professional misconduct which may lead to disciplinary action. But if a new test is to be applied or a new species of conduct is to be regarded as amounting to professional misconduct, then one would expect the Council to notify its members of that …””

5. Current Ethical Guide
The current edition of the Guide was issued in 2009.
It is entitled “The Guide to Professional Conduct and Ethics for Registered Medical Practitioners” (7th ed.) and deals with end of life care, advanced health care planning, and consent.

6. Ethical Guide
“22.1 As a doctor, you play an important role in assisting patients, families and the community in dealing with the reality of death. In caring for patients at the end of life, you share with others the responsibility to take care that the patient dies with dignity, in comfort and with as little suffering as possible.
22.2 There is no obligation on you to start or continue a treatment, or artificial nutrition and hydration, that is futile or disproportionately burdensome, even if such treatment may prolong life. You should carefully consider when to start and when to stop attempts to prolong life, while ensuring that patients received appropriate pain management and relief from distress.
22.3 You should respect the right of patients to refuse medical treatment or to require the withdrawal of medical treatment. You should also respect a patient’s Advance Healthcare plan (also known as a living will). Further guidance is provided in paragraphs 40 and 41.
22.4 You should take care to communicate effectively and sensitively with patients and their families so that they have a clear understanding of what can and cannot be achieved. You should offer advice on other treatment or palliative care options that may be available to them. You should ensure that support is provided to patients and their families, particularly when the outcome if likely to be distressing for them.

7. Ethical Guide
22.5 After the death of a patient, you should be available to speak with the bereaved family if that is what they wish. You should, as far as possible, explain the circumstances of the patient’s death to the family in an open and sensitive manner unless the patient previously recorded an objection to such information being given.
22.6 You must not participate in the deliberate killing of a patient by active means.”
“Refusal of treatment
40.1 Every adult with capacity if entitled to refuse medical treatment. You must respect a patient’s decision to refuse treatment, even if you disagree with that decision. In these circumstances, you should clearly explain to the patient the possible consequences of refusing treatment and offer the patient the opportunity to receive a second medical opinion if possible.
40.2 the explanation you give the patient and the patient’s refusal of treatment should be clearly documented in the patient’s medical records.
40.3 If you have doubts or concerns about the patient’s capacity to refuse treatment, the provisions set out in paragraph 34 apply.

8. Who makes the decision and on what grounds?
(i) the patient,
(ii) the family,
(iii) the medical professionals,
(iv) the Courts.
Best interests of the patient
Will the Courts defer to the opinion of the doctors? Who is really making the decision?

9. Some Irish Cases
In re Ward of Court (withholding medical treatment) (No. 2) , where a 22 year old lady had undergone a minor operation in 1972, during which procedure she suffered 3 heart attacks resulting in brain damage. As a result, she was in close to a persistent vegetative state. Her family sought an order directing that her artificial nutrition and hydration should cease (in 1995) and this application was opposed by the hospital institution cared for her.
Criteria was best interests of the ward
As the ward was not in a position to give any consent to the withdrawal of treatment which would have had the inevitable consequent of death, it fell to the courts, exercising Wardship jurisdiction to make a decision on her behalf. Upholding the decision of the High Court to allow the withdrawal of nutrition and hydration, the Chief Justice said:
“He had regard to the condition of the ward, to the fact that the treatment was intrusive and burdensome and of no curative effect, to the fact that the ward had only minimal cognitive function, had been in that condition for twenty three years, to the wishes of the mother and other members of the family, to the medical evidence and to the submissions by all the parties to the proceedings …”

10. Some Irish Cases
(i) J.M. v. The Board of Management of St. Vincent’s Hospital , where the High Court had to consider allowing a blood transfusion and liver transplant to a critically ill lady who was not in a position to provide consent, and
(ii) Fitzpatrick v. F.K. where the High Court had made an order requiring the transfusion to a mother who had refused consent to that transfusion, and
(iii) Re S.R. (a ward of court) where a hospital sought directions as to the proper case and treatment of a 6 year old boy who had suffered extensive irreversible brain damage as a result of a near drowning incident.

11. Some Irish Cases SR case
“One final point should be mentioned and that is whether it would ever be appropriate for a court to require a medical practitioner to adopt a course of treatment which in the bona fide clinical judgment of the practitioner is not in the best interests of the patient. Although it does not arise in the instant case, I cannot conceive of any circumstance where such an order would be suitable, as this would clash with the primary duty of the medical practitioner to act in the best interests of their patient. The Hippocratic Oath emphasises the duty on doctors to do no harm to their patients, and that would be difficult to reconcile with an order of the court requiring them to treat a patient in a manner inconsistent with their own clinical judgment.”

12. Some Irish Cases P.P. v. Health Service Executive
“The question then become one of how far the Court should go in terms of trying to vindicate that right in the particular circumstances which arise here. Some very considerable guidance in that regard, derived from some well- known Wardship cases. In re a Ward of Court (…) the High Court held that the right to life ranked first in the hierarchy of personal rights, though it might nevertheless be subject to certain qualification.
Thus, although the State has an interest in preserving life, this interest is not absolute in the sense that life must be preserved and prolonged at all costs no matter what the circumstances.

13. Medical Misconduct – End of Life Care
Shipman case
David v General Medical Council
“I have considerable sympathy with (the doctors) submission that in general the PCC is not the appropriate forum to investigate genuine ethical questions. Serious professional misconduct normally involves conduct going beyond established ethical rules. Where there are ethical disputes affecting medical practice, the GMC may provide advice … and such advice must be particularly valuable where there are no established rules of practice. A medical practitioner who acts inconsistently with such advice may be guilty of serious professional misconduct. But where there are genuine but conflicting views as to the appropriate ethical medical response to a defined situation, held by responsible bodies of medical men, and there is no relevant guidance of the GMC or applicable legal rule, it may be difficult to see that conduct consistent with one of those views could be serious professional misconduct.”

14. Lack of Legal Certainty
PP v HSE
“A study of the notes brought home that the doctors in the Dublin hospital were clearly concerned, having regard to the mother’s pregnancy, not to do anything that would “get them into trouble from a legal point of view and were awaiting legal advice” …”

15. Misconduct Allegation in case against Dr. David
“Dr. Alagesan considers that there was no justification to terminate Mr. Symons' care when it was withdrawn. He stated that Mr. Symons did not satisfy any of the established criteria for the withdrawal of treatment. Referring to the medication given to Mr. Symons when treatment was withdrawn, he said:
“It is therefore difficult not to assume that the intention was not a simple withdrawal of treatment but a firm attempt to stop him from breathing. … there is no doubt that the combination of sedation and the removal of airway shortened his life.”
In the summary to his report, he stated:
“There was no obvious consensus to withdraw treatment. Withdrawal was inappropriate and pre- mature and was done in an unconventional manner”.”
BUT there also was medical evidence to support the treatment which she had given.

16. Misconduct Dr. David Struck off for misconduct
American Cases Dr. Naramore, Dr. Pinzon – Reyes, Dr. Weizel, Dr. Luke, Dr. Pou.
Unclear as to whether such cases have come before the Irish regulator
Likely to have been held in private
Can involve highly controversial clinical and medical issues