Washington and Lee University School of Law Washington & Lee University School of Law Scholarly Commons Scholarly Articles Faculty Scholarship 2003 A Comparative Study of the Law of Palliative Care and End-of-Life Treatment Denuta Mendelson Timothy Stoltzfus Jost Washington and Lee University School of Law, [email protected] Follow this and additional works at: https://scholarlycommons.law.wlu.edu/wlufac Part of the Law Commons Recommended Citation Timothy S. Jost, A Comparative Study of the Law of Palliative Care and End-of-Life Treatment, 31 J. L. Med. & Ethics 130 (2003) This Article is brought to you for free and open access by the Faculty Scholarship at Washington & Lee University School of Law Scholarly Commons. It has been accepted for inclusion in Scholarly Articles by an authorized administrator of Washington & Lee University School of Law Scholarly Commons. For more information, please contact [email protected]. A Comparative Study of the Law of Palliative Care and End-of-Life Treatment Danuta Mendelson and Timothy Stoltzfus Jost the practice of medicine and the conduct of medical practi- Quinlancase a quarter of a century ago, three Ameri- tioners. The United Kingdom, Canada, and Australia have incecan Supremethe Supreme Court Court decisions' of New and Jersey a host decided of state the common law systems in which the law is based on judge- appellate decisions have addressed end-of-life issues.2 These made precedents as well as legislation. The legal systems of decisions, as well as legislation addressing the same issues, Poland, France, Germany, Japan, and the Netherlands are have prompted a torrent of law journal articles analyzing based primarily on national civil and criminal codes, though every aspect of end-of-life law. In recent years, moreover, a their appellate courts do make authoritative rulings on the number of law review articles, many published in this jour- law. This article will examine the common law countries nal, have also specifically addressed legal issues raised by together, as they share a common legal tradition and com- palliative care.3 Much less is known in the United States, mon precedents, while the civil law systems, which are more however, as to how other countries address these issues. diverse, will be examined separately. Reflection on the experience and analysis of other nations To add to the complexity, national laws of members of may give Americans a better understanding of their own ex- the European Union, including the United Kingdom, Ger- perience, as well as suggest improvements to their present many, the Netherlands, and France, are subject to the European way of dealing with the difficult problems in this area. Convention on Human Rights and Fundamental Freedoms4 This article offers a conceptual and comparative analy- (ECHR) as interpreted by the European Court of Human sis of major legal issues relating to end-of-life treatment and Rights in Strasbourg. Poland, as an aspiring member of the to the treatment of pain in a number of countries. In particular, European Union, is adapting its laws to fit in with the Euro- it focuses on the law of Australia, Canada, the United Kingdom, pean Union's jurisprudence.' Poland, France, the Netherlands, German); and Japan. Finally, the national laws of individual countries are The legal analysis of end-of-life and pain treatment is shaped by the history, community values, economics, cul- complex. It can involve issues of criminal law and the law of ture, religious orientation, and current predominant legal battery and negligence (tort/delict) as well as constitutional philosophy of those countries. In this article, we will high- and international law. Legal analysis of these problems is light only the major issues, similarities, differences, and shaped by the juridical system and philosophy of each coun- problems raised by these factors. try, as well as by international conventions that have been incorporated into the law of the respective countries. Poland, France, the Netherlands, Japan, and the United CoNsE•r AND REFusAL OF TREATmwr Kingdom (devolved administration in Scotland, Wales, and As a general rule, all common law and most civil law juris- Northern Ireland) are unitary systems, whereas Canada, Ger- dictions presume every adult person to have the mental many, and Australia are federations, in which the legislatures capacity to consent to or to refuse any medical intervention, of constituent provinces or states have the power to regulate including life-saving or life-sustaining treatment, unless and until that presumption is rebutted.6 It is irrelevant that the Journalof Law, Medicine &Ethics, 31 (2003): 130-143. refusal may not be in the best interests of the patient, or that © 2003 by the American Society of Law, Medicine & Ethics. the decision may entail a risk of death. 7 The refusal must, 130 The Journalof Law, Medicine & Ethics however, be unequivocal and often must be recorded in writ- gence; and in accordance with proper professional standards ing. The right to refuse medical treatment is based on the of palliative care." If these requirements are met, then "for principle of personal autonomy, and was upheld by the Eu- the purposes of the law of the State, the administration of ropean Court of Human Rights in Pretty v. the United medical treatment for the relief of pain or distress ... does Kingdom,' which noted that the right to refuse treatment not constitute an intervening cause of death.""l conforms with the privacy guarantees contained in Article 8 ECHR? of the Withdrawal and withholding of medical treatment from incompetent or unconscious patients where LEGAL APPROACHES TO END-OF-LiFE TREATMENT IN there is no advance directive COMMON LAW COUNTRIES In England, Wales, and Northern Ireland, but not in Scot- In general, the common law countries (the United Kingdom, land,'" the discontinuance of artificial nutrition and hydration Canada, and Australia) have adopted very similar philosophi- for a patient in a vegetative state requires the prior sanction of a High Court20 by way of a declaration based on the best cal and juridical approaches toward end-of-life treatment. 2 This is true with respeci to palliative care, withholding and interests test. 1The seminal common law case on the with- termination of life-sustaining treatment, assisted suicide, and drawal of artificial life supports from incompetent persons is active euthanasia. Airedale N.H.S. Trust v. Bland.2 Anthony Bland, at the age of 17, sustained catastrophic and irreversible damage to the higher centers of his brain, which left him in a persistent Palliative care vegetative state. The House of Lords decided that doctors and other life sup- The most controversial legal issue with respect to palliative might lawfully discontinue biochemical vegetative state care in the countries under consideration has been the use of port systems from a patient in a persistent is an omis- opioids to alleviate patients' suffering in their final stages of where the cessation of nourishment and hydration life, particularly when the opioids are suspected of causing sion, and not an act. 0 treat- death. In the 1957 English case of R. v. Adams,1 Dr. John The House of Lords reasoned that nonconsensual Incompetent Bodkin Adams was charged with murder when it was dis- ment violates the principle of personal autonomy. covered that he had treated a number of elderly patients who patients may, however, be treated nonvoluntarily on the basis best interests require had died in his care with high doses of narcotic analgesics. In of the doctrine of necessity where their "for the protection of the his address to the jury, Lord Justice Devlin said that a physi- that the treatment be administered his [sapient] life."21 Once it cian "is entitled to do all that is proper and necessary to plaintiff's health and possibly is permanently comatose or in relieve pain and suffering, even if the measures he takes may becomes clear that the patient in incidentally shorten life."" a persistent vegetative state, however, his or her interests them the justifica- This approach is sometimes called the doctrine of double being kept alive have ceased, taking with even though effect. Under this doctrine, the cause of death of patients tion for the nonconsensual medical treatment, also not further the person's who die while receiving pain treatment will be attributed to termination of life supports will according to the House the underlying disease in situations where the patient's pain best interests. In such circumstances, longer a duty to provide nourishment and other discomforts are controlled through properly cali- of Lords, there is no therefore failure to do so cannot consti- brated titration of dosages, even if the dosages are high.12 and hydration, and Goff of Chieveley observed: This is because the law sees a sharp distinction between tute a criminal offense. Thus, Lord appropriate palliative care, offered with an intention to ease part, I cannot see that medical treatment is a patient's pain and suffering, and actions specifically aimed For my 3 or requisite simply to prolong a at ending a patient's life." This approach has been adopted appropriate 4 such treatment has no thera- by the House of Lords,1 the Supreme Court of Canada,'" patient's life when 6 peutic purpose of any kind, as where it is futile and the Supreme Court of the United States.' and there is no The High Court of Australia has yet to determine this because the patient is unconscious of any improvement in his condition. 24 issue. However, the South Australian Consent to Medical prospect Treatment and Palliative Care Act of 199517 provides that Court of England in NationalHealth medical practitioners will not incur civil or criminal liabil- In 2001, the High A. v.