THE report in yesterday's newspapers that a survivor of the Hillsborough disaster has recovered some level of cognition after having been diagnosed as being in a permanent vegetative state (PVS) is likely to provoke further popular debate about the merits or otherwise of the Supreme Court's decision in the "right to die" wardship case in 1995.
From a strictly legal perspective, however, this development does not undermine that decision, given that the principle in the wardship case was not restricted to PVS patients. That is not to say, however, that the Supreme Court decision here is above reproach.
Contrary to popular perception, and despite references to the value of personal autonomy in the majority judgments, the decision in the wardship case establishes, not so much that a competent patient has a right to die but that, in appropriate circumstances, the courts may authorise a course of action intended to bring about the death of incompetent patients, including those who are not fully PVS.
In the wardship case itself, the evidence showed that the patient had a minimal capacity to recognise long established nursing staff and to react to strangers by showing distress; she tracked people with her eyes and reacted to noise, though both of these activities were mainly reflexive from the brain stem; she also found the nasogastric tube, through which she was initially fed, irritating or distressing and succeeded in pulling it out on numerous occasions.
While the value of personal autonomy is most often cited as the basis on which society should recognise a right to die, the test adopted by each member of the Supreme Court - is discontinuance of artificial nourishment and hydration in the best interests of the ward? - cannot logically be defended in terms of protecting the autonomy of the patient. Thus one is forced to conclude that the case recognises not so much the patient's right to die as the State's power to authorise a course of action leading to her death.
No doubt, some may be disturbed by the idea of the courts exercising such a paternalistic jurisdiction ink this context. Certainly the failure of the majority to clarify the scope off this paternalistic jurisdiction should be of major concern. Three factors contribute to this uncertainty.
First, as already indicated, the woman at the centre of the wardship case was not fully PVS and so the majority ruling cannot be limited to patients in that condition (even assuming that this condition can be diagnosed with confidence). However, the majority decisions offer no useful assistance in determining at what point along the scale of consciousness the ruling ceases to apply.
SECOND, some members of the majority attempted to classify the woman as terminally ill. However, in my opinion, this suggestion is ultimately unconvincing and so it is arguable that the ruling cannot logically be restricted to the terminally ill but may encompass the chronically ill as well.
However, the major factor contributing to the uncertainty here is that the majority fail to clarify the basis for, and the extent of, the State's interest in preserving life. No judge makes explicit his or her understanding of the principle of the sanctity of life in this context, and support may be found in the judgments for both a religious and a secular version of the sanctity of life.
However, in order to know the precise extent of the right to die and of society's right to authorise a course of action leading to death, we need to know on what basis society is entitled to intervene to protect life. For example, in my opinion an absolute, self evident prohibition on active voluntary euthanasia, which admits of no exceptions, is only explicable in the context of a religious understanding of the principle of the sanctity of life which sees life as a gift from God.
Once concerns about the reality of the patient's consent and the needs of his or her dependants are addressed, it may not be possible to justify such an absolute ban if one does not share this religious perspective (though I would not wish to underestimate the difficulty of establishing full consent to die on the part of the patient).
By the same token, a restriction of the right to die to terminally, as opposed to chronically, ill patients may not make sense for someone who subscribes to a secular understanding of the sanctity of life.
Thus the clarification of the precise understanding of the sanctity of life with which the courts are work ing is a necessary prerequisite to an accurate description of the right to die in Irish law and of the extent of society's right to authorise a course of action leading to death. Unfortunately such clarification is missing from the majority judgments in the wardship case.
MEDICAL and legal practice in this area was traditionally - paternalistic, based on a duty driven principle of the sanctity of life. One of the characteristics of contemporary society is a growing emphasis on the rights of the individual - in this context, on the rights of the patient.
In view of the manner in which the Constitution has contributed to the development of individual rights, it is perhaps paradoxical that, in the very. sensitive area of euthanasia, Irish law remains paternalistic in nature. It is certainly regrettable that the Supreme Court judgments in the wardship case were not capable of providing a clearer and more definite constitutional framework for resolving the difficult issues raised by debate on the right to die.
