End of Life Flashcards
What is the possibly culpability when a health practitioner intentionally causes death of a patient they are caring for?
Homicide
What is required to be culpable of homicide in relation to medical law?
(1) Homicide - s 158 “the killing of another human being directly or indirectly” = causation (R v Smith says doesn’t have to be only cause of death but must be a substantial cause of death).
(2) Culpable Homicide - s 160 (a) unlawful acts or (b) omission without lawful excuse to perform or observe any legal duty.
(3) Murder - s 167 (a) mean to cause death or (b) mean to cause bodily injury known likely to cause death and reckless if death ensures of not.
If not murder then manslaughter.
What is the defence to homicide in relation to medical law?
Necessity
How do we know that necessity is still a valid defence?
Section 20 - all common law rules/principles still available as long as not overridden by the Act.
What case first articulated the defence of necessity?
R v Dudley and Stevens - boat case where they eat the cabin boy
Articulated the defence but it was not available in the circumstances - boat members were convicted of murder.
What case was the defence of necessity accepted in relation to homicide?
Re A - the conjoint twins case.
Why was necessity accepted as a defence to killing Mary in Re A?
Because she was destined for death anyway meaning causing Mary’s death was proportionate to saving Jodie’s life.
Is the scope of necessity in relation to medically caused death limited or wide?
Limited scope - because of the sanity of life/moral considerations.
Why it is unlikely that practitioner culpable for homicide when death is an incidental effect of provisions of pain relief?
(1) Causation very difficult to prove given pain relief given for an underlying condition which is more appropriately the cause of death and (2) unlikely to satisfy it was an unlawful act because giving pain relief in the best interests of the patient (Airedale said that good medical care will not be the basis of an unlawful act).
What section of the crimes act says you cannot consent to the infliction of death?
Section 63
What does withdrawal of treatment constitute that opens up liability of homicide?
Withdrawal of treatment is an omission
What is the legal duty at play for an omission of treatment?
Section 151 - duty to provide the necessities of life.
States that any person who in charge of someone who is sick (e.g., a doctor) is under a legal duty to supply that person with the necessaries of life and criminally responsible for omitting without lawful excise to perform such duty if death ensues from such omission.
Necessaries includes anything that prolongs life.
What is the DOC that doctors owe to patients?
To provide treatment that is in the best interest.
What is the caveat to the duty to provide necessities (s 151)?
Ordinary omission is not enough - it has to be a major departure which is a high standard.
Section 150A(2) - “a major departure from the standard of care expected of a reasonable”.
What is the test for medical lawful excuse developed by the courts?
“Good Medical Practise”
What case set out the current good medical practise test?
AAHB v AG 1993 HC NZ
What are the relevant factors to good medical practise set out in AAHB v Ag?
(1) Decision in good faith that withdrawal of treatment in patients bets interest
(2) Conformity with prevailing standards and practices commanding approval within the medical profession
(3) Ethics committee approval
(4) Full and informed consent of the family
Why has the Good Medical Practice test from AAHB been criticised?
It is a very broad phrase
Relies on an objective test of best interest - not patient centred.
Puts too many obligations on the practitioners
It was created in relation to particular circumstances of the case and cannot/should not be universally applied as a strict test.
What were the facts of the Airedale case and what does it stand for?
Anthony bland - crushed at Hillsborough stadium and been in PVS for three years. Not ever going to get better.
Family want hospital to let him die (stop treating).
Doctors have a duty to act in the best interests of their patients but this does not necessarily require them to prolong life - it was lawful to withhold life-extending treatment.
Treatment was not in the best interest of patient because there being no prospect of recovery.
Distinguished between act (administrating a lethal drug) and omission (withholding life prolonging treatment).
What are the facts of Shortland v Northland Health Ltd [1998] COA NZ?
Patient was a type 2 diabetic and had mild dementia. Had kidney failure and needed dialysis to live.
Hospital did not accept patient to continue living of dialysis treatment because he could not active cooperate with the guidelines of dialysis (unable to manage it on his own) meaning it was perceived not in his best interest.
He issued proceedings for a declaration that this decision was unlawful.
What was the outcome of Shortland v Northland Health Ltd?
He was unable to access life prolonging dialysis because it was a matter of what was in his best interest - held that it was not in his best interest.
What is section 8 of NZBORA?
“No one shall be deprived of life except on such grounds as are established by law and are consistent with the principles of fundamental justice”.
What were the arguments on appeal in COA for the declaration in Shortland v Northland Health Ltd?
Duty to provide necessaries of life
Deprivation of life contrary to s 8 NZBORA
Discontinuing dialysis breached requirements of Good Medical Practice - AAHB v AG
Guidelines said “greatest probable benefit” which is resource based and this was not a resource issue
Why was the declaration declined in Shortland v Northland Health Ltd?
Accepted not in patients best interest for life-prolonging treatment to continue because he did not met the dialysis administration guidelines.
Court does not want to interfere with the doctors decision.
Said there was no breach of section 151 and NZBORA section 8 because it was the underlying kidney disease that was causing his death.
How did Shortland v Northland apply the AAHB v AG ‘Good Medical Practise’ test and what is the associated concerns with the Courts application of the test?
They said the test is to be applied on a case by case basis and not determinative that all elements are met.
Said “Those responsible for the patient’s care should bear in mind the views expressed but ultimately they must decide what in clinical terms and within the resources available is best for their patient.” –> should be more patient centred.
(1) said no doubt that the decision were made in good faith in the belief they were in the best interests of Mr W –> no discussion of patients best interest - Mr W wanted the treatment - best interest should be subjective.
(2) No evidence before the court of failure to meet second criterion.
(3) Consultation with appropriate medical specialist and recognised ethical body will depend on facts. (pretty much said it wasn’t an ethical issue therefore do not always have to go to committee –> would argue it is ethical because autonomy engaged).
(4) Appropriate to require “reasonable consultation” with the patient and family members, but ultimately clinicians “must decide what in clinical terms and within the resources available is best for their patients”.
What are your critics of the Shortland v Northland Health Ltd judgement?
Their application of the ‘Good Medical Practice’ test was not subjective.
They conflated best medical practise with conformity (rules/laws etc) rather than patient centred which is out of step with how we address best interest in the code and in other common law jurisdictions.
They didn’t interrogate the circumstances of this case enough.
