This is the advice which the Attorney General, Mr Michael McDowell, gave to Mr Duncan Inverarity, BCM Hanby Wallace, solicitors for the regional hospital, on the treatment of the brain-dead woman on May 25th.
Thank you for your correspondence of 17 May 2001 and 22 May 2001, in relation to the very sad case concerning Mrs. . . May I say at the outset that if circumstances are such that Mr. . . is aware that this Office has been contacted in relation to his wife's case, I would very much desire that our heartfelt sympathy should be conveyed to him?
Secondly, I would like to express my gratitude to you for the sensitive way in which you and Counsel have handled this matter and for the courtesy shown me in alerting me to the situation and in keeping me informed about it.
While I would normally refrain from expressing any views about a situation such as this unless there were a clear reason for doing so, I feel that it would be appropriate, in the particular circumstances of this case, to express my views on two issues which have arisen. My motive in doing so is to prevent any misunderstanding should similar circumstances arise in the future.
Legitimus Contradictor
In your original letter of 17 May 2001, you indicated as follows: `subject to those medical opinions, our client intends, to make application to the High Court seeking a direction from the court regarding the patient's continuing (or withdrawal of) treatment. We would also seek to make the patient and/or foetus a Ward of the State. In the event that the matter proceeds to court, we intend to join the Attorney General as legitimus contradictor'.
Without expressing any opinion as to whether wardship would be appropriate or available in the case of a brain-dead patient and/or a foetus (and these are matters on which I have no fixed view), I feel that I should express for the record my view that it would have been inappropriate that the Attorney General should be joined as `legitimus contradictor' on the basis mentioned in the letter. My reason for that observation is that, at the time of writing that letter, the nature of the declaration (whether to continue or withdraw treatment) was still an open issue. I have grave doubts as to whether it would be appropriate for the Attorney General to act simply as legitimus contradictor in any such proceedings initiated in the High Court seeking a declaration. The necessity for joining the Attorney General would arise from my role as chief law officer of the State. My own preference would be that if any interest required representation, the court would make an Order appointing persons to represent that interest. As to the costs of such a representative party, I express no fixed view but could well imagine circumstances in which, were the Attorney General also to be joined because of the public importance of the issue, that the court might request the Attorney General to give an undertaking as to the costs of an unprotected interest which the court felt to be in need of representation.
I feel it would be undesirable for the Attorney General to be fixed with the obligation to argue for a proposition at the election of a party to the proceedings. I fully appreciate that you and your Counsel would understand my reluctance to have a stance effectively chosen for me in the circumstances.
Necessity for Proceedings
The second point on which I feel I ought to express a view is that of the necessity for the institution of court proceedings in circumstances such as this.
Mr (Gerard) Hogan and Mr (Peter) Ward, at paragraphs 3 and 4 of the Opinion furnished to me, state the following:
`3. It is important to note that:
The `treatment' can have no beneficial effects whatever for Mrs. . ., but is simply designed to keep her body alive in order to sustain the foetus.
The foetus is at best some eight to nine weeks away from viability outside the womb. If Mrs. . .'s body survived for this period (which, as we shall see, is so highly improbable as to be practically a remote contingency), there is still the possibility that the foetus might survive a section delivery, but, of course, the risk of permanent damage - having regard to the circumstances of Mrs. . .'s collapse - is, apparently, high.
The treatment will not affect the foetus.
4. Naturally, the present circumstances presented querist with an acute ethical and legal dilemma. Upon being instructed in respect of the facts of the case, we advise that under no circumstances ought the ventilator be switched off in the absence of a court order and, to avoid any possible doubt, we now reconfirm this advice. Agents duly notified the Attorney General of the circumstances of the case and the Attorney has been kept personally informed over the last few days.'
If by the foregoing, Counsel meant that they were reconfirming their advice based on the original set of circumstances I would forbear from comment.
If, however, Counsel intended to imply that it would still be unlawful to discontinue the existing life-support regime, including artificial ventilation, nutrition and fluids, I would respectfully state that I do not share that view.
I think the latter meaning is the more probable having regard to what is set out in paragraph 14 of Counsels' Opinion where they state:
`14. We do not believe that the High Court would interpret the hospital's constitutional obligations as going any further than what has already been done in the present case. In particular it does not seem to us that the courts would take the remarkable step of ordering the hospital to take al- together extraordinary measures artificially to maintain the organs of the dead mother including, for example, dialysis. We repeat, how- ever, that under no circumstances should the ventilator be switched off without a court order for so long as the organs of the mother are viable and have not come to a natural end, thereby inevitably terminating the life of the foetus'.
While the hospital must take its own advice and, if it wishes, be bound by it, I feel that in the particular circumstances of this case, the withdrawal of ventilation, nutrition and fluids would not require court sanction.
Counsel have acknowledged that the measures which have been taken to date in the present case `are, by any standards, extraordinary'. Counsel go on to observe as follows: `Were it not for the existence of the pregnancy, these measures would have never been contemplated, still less attempted.'
It is my considered opinion that while it is always open to a hospital to seek protection and guidance from the courts in the handling of a difficult issue involving life and death such as this, the facts of this case as now known would not prohibit the hospital from making its own ethical judgment and from acting on it even to the point of withdrawing the life support regime currently in place.
Every such case depends exclusively on its own facts and nothing which I have written is intended to discourage the hospital from pursuing the highest standards of ethical and medico-legal behaviour.
I have no doubt that Counsel's Opinion is based on a scrupulous examination of the facts and a very proper desire to protect the hospital from subsequent criticism, not to mention a desire to ensure proper compliance by a State funded hospital with constitutional values and obligations.
My only concern is that by failing to comment on the legal opinion which has been furnished to me, it might be thought that I, too, was of the opinion that the withdrawal of the life support regime now in place for Mrs. . . could only be effected with the authority and protection of a court order. Based on the medical opinions furnished to me and my own limited acquaintance with medical literature on the issue, I am not of the view that a court order would be necessary before the life support regime for Mrs. . . could be withdrawn. In particular, I would not like Mr. . . to be left with the impression that an ethically proper medical decision to withdraw the current life support regime in respect of Mrs. . . could not be made because of any misunderstanding to the effect that the Attorney General believed or shared Counsel's belief that a court order would be necessary in order to effect same.
Yours sincerely,
Michael McDowell SC
Attorney General