Craig Hill
KC Hill
Paladin
Oracle of DelphiThe Legal Definition of Death
May 30th 2006 08:03
Morbid topic, I know. But believe it or not there are millions of cases around the world that discuss the legal definition of death.
Under the Human Tissue Act 1983, NSW, for the purposes of the law of NSW, a person has died when there has occurred:
a. irreversible cessation of all function of the person’s brain or
b. irreversible cessation of circulation of blood in the person’s body.
This is an important matter for the courts to consider because in some situations, medical treatment may be withheld from a patient at their request or at the request of the patient’s family. The thing is, that if a doctor agrees and pulls the cord that is sustaining that person’s life, then he or she could be accused of murder. So the courts have to decide the point at which a person is legally dead and whether it was the doctor who either lawfully or unlawfully caused it.
Generally, under Australian law, a competent adult patient is entitled to refuse treatment even if he or she will die as a result. A doctor who acts on a patient’s refusal will not incur any civil or criminal liability.
However, the keyword is REFUSAL of treatment. A patient, no matter how competent he or she may be, cannot request a positive act to bring about death. That would be murder, and that’s what the whole euthanasia debate is about. Giving a lethal injection to a patient is considered a positive act and is unlawful in Australia whilst turning off a patient’s respirator is considered an omission rather than a positive act and is lawful.
That doesn’t mean that any old doctor can turn off any old respirator any old time he wants. No. In some instances, patients can’t actually refuse the treatment themselves because, for example, they are in a coma. So what is the doctor supposed to do?
A doctor can lawfully withdraw treatment in two circumstances. Firstly, if it is futile treatment and secondly, if the treatment imposes a burden on the patient not justified by the potential advantages. Futile treatment refers to treatment that is of no practical value. An example of this is where death is inevitable and the treatment will not cure the person. There was a case in England that involved a boy who was critically injured and left in a permanent vegetative state. Although his brain stem was in tact, his lungs had been reduced to a watery mass and he had lost all his senses. There was no chance of him recovering and for that reason, any treatment would have been futile.
Treatment that imposes a burden on the patient refers to any treatment that will result in an unacceptable quality of life. There have been no Australian decisions that confirm the withdrawal of treatment in such circumstances, but again there are English cases that support the concept in cases of very profound disability. There was one such case where a child was born with severe brain damage, had lost sight and hearing and was unresponsive. The child was in a condition where he could not survive but for the ventilation and feeding equipment that he was attached to. In that situation the court decided that treatment should be withdrawn because all the treatment was doing was prolonging an unacceptable quality of life.
In short, a doctor can only withhold treatment from a patient if:
1. the doctor has the patient’s consent and the patient is considered a competent adult
2. the treatment is futile
3. the treatment imposes an unjustifiable burden on the patient
Otherwise, the doctor may have to face a murder charge.
from www.morguefile.com
Under the Human Tissue Act 1983, NSW, for the purposes of the law of NSW, a person has died when there has occurred:
a. irreversible cessation of all function of the person’s brain or
b. irreversible cessation of circulation of blood in the person’s body.
This is an important matter for the courts to consider because in some situations, medical treatment may be withheld from a patient at their request or at the request of the patient’s family. The thing is, that if a doctor agrees and pulls the cord that is sustaining that person’s life, then he or she could be accused of murder. So the courts have to decide the point at which a person is legally dead and whether it was the doctor who either lawfully or unlawfully caused it.
Generally, under Australian law, a competent adult patient is entitled to refuse treatment even if he or she will die as a result. A doctor who acts on a patient’s refusal will not incur any civil or criminal liability.
However, the keyword is REFUSAL of treatment. A patient, no matter how competent he or she may be, cannot request a positive act to bring about death. That would be murder, and that’s what the whole euthanasia debate is about. Giving a lethal injection to a patient is considered a positive act and is unlawful in Australia whilst turning off a patient’s respirator is considered an omission rather than a positive act and is lawful.
That doesn’t mean that any old doctor can turn off any old respirator any old time he wants. No. In some instances, patients can’t actually refuse the treatment themselves because, for example, they are in a coma. So what is the doctor supposed to do?
A doctor can lawfully withdraw treatment in two circumstances. Firstly, if it is futile treatment and secondly, if the treatment imposes a burden on the patient not justified by the potential advantages. Futile treatment refers to treatment that is of no practical value. An example of this is where death is inevitable and the treatment will not cure the person. There was a case in England that involved a boy who was critically injured and left in a permanent vegetative state. Although his brain stem was in tact, his lungs had been reduced to a watery mass and he had lost all his senses. There was no chance of him recovering and for that reason, any treatment would have been futile.
Treatment that imposes a burden on the patient refers to any treatment that will result in an unacceptable quality of life. There have been no Australian decisions that confirm the withdrawal of treatment in such circumstances, but again there are English cases that support the concept in cases of very profound disability. There was one such case where a child was born with severe brain damage, had lost sight and hearing and was unresponsive. The child was in a condition where he could not survive but for the ventilation and feeding equipment that he was attached to. In that situation the court decided that treatment should be withdrawn because all the treatment was doing was prolonging an unacceptable quality of life.
In short, a doctor can only withhold treatment from a patient if:
1. the doctor has the patient’s consent and the patient is considered a competent adult
2. the treatment is futile
3. the treatment imposes an unjustifiable burden on the patient
Otherwise, the doctor may have to face a murder charge.
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Secondly, being in a vegetative state is definetly horrible. I can't imagine what it must be like for people who are so sick that they would rather die than be alive. Though I am totally anti-euthansia, I also can't help but sympathise with those who want that lethal injection...