Consultation Paper on Bioethics - Law Reform Commission

“…there are very powerful arguments to suggest that the dignity and
autonomy of the human person (as constitutionally predicated)
require the State to recognise that decisions relating to life and death
are, generally speaking, ones in which a competent adult should be
free to make without outside restraint, and that this freedom should
be regarded as an aspect of the right to privacy which should be
protected as a „personal‟ right by Article 40.3…in the case of the
terminally ill, it is very difficult to see what circumstances would justify
the interference with a decision by a competent adult of the right to
forego or discontinue life-saving treatment.” 1
2.03 In the 1996 judgment of Re a Ward of Court (No 2), 2 Costello J‟s
article was cited with approval by the Supreme Court. 3 O‟Flaherty J stated:
“there is an absolute right in a competent person to refuse medical
treatment even if it leads to death.” 4
He considered that “it would be correct to describe the right in our law as
founded both on the common law as well as the constitutional rights to bodily
integrity and privacy.” 5 Denham J agreed, adding that:
“…medical treatment may be refused for other than medical reasons,
or reasons most citizens would regard as rational, but the person of
full age and capacity may make the decision for their own reasons.” 6
2.04 As a result, the right to refuse treatment “does not sit easily with the
traditional ethos of the medical profession, which was paternalistically based on
1 Costello “The Terminally Ill – The Law‟s Concerns” (1986) 21 Irish Jurist 35 at 42.
2 [1996] 2 IR 79
3 Ibid at 125 per Hamilton CJ.
4 Ibid at129.
5 Ibid.
6 Ibid at 156. It is interesting to note that the following italicised text in the
unreported approved judgment of Denham J in Re a Ward of Court (No 2) 27 July
1994 at p. 24 of the judgment does not appear in either In re a Ward of Court
(withholding medical treatment) (No 2) [1996] 2 IR 79 at 156 or In re a Ward of
Court (withholding medical treatment) (No 2) [1995] 2 ILRM 401 at 454:
“…medical treatment may be refused for other than medical reasons. Such
reasons may not be viewed as good medical reasons, or reasons most citizens
would regard as rational, but the person of full age and capacity may take the
decision for their own reasons.”
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