Consultation Paper on Bioethics - Law Reform Commission

C United States of America
(1) Re Quinlan
2.21 The 1976 New Jersey Supreme Court decision in Re Quinlan 40
concerned the plight of a Karen Ann Quinlan, a 22 year-old woman who was in
a persistent vegetative state. Her physicians refused to turn off her respirator,
fearing that to terminate treatment would attract the imposition of criminal
liability and would be contrary to medical practice and standards. Her father
sought a court order empowering him to authorise the discontinuance of “all
extraordinary medical treatment”, arguing that that was what his daughter would
have wanted. The Supreme Court held that the constitutional right to privacy
could be extended to the patient who refuses life-sustaining treatment. It
concluded that the State‟s interest in preserving life:
“…weakens and the individual‟s right to privacy grows as the degree
of bodily invasion increases and the prognosis dims. Ultimately there
comes a point at which the individual‟s rights overcome the state
interest. It is for that reason that we believe Karen‟s choice, if she
were competent to make it, would be vindicated by the law.” 41
Although there was no advance directive in Quinlan, the case highlighted the
horrific plight of Ms Quinlan and her family, and galvanised public interest in
“moving living wills from their shadowy existence as hortatory statements to
officially recognised instructions.” 42
(2) Legislative developments
2.22 Within months of Re Quinlan, the first advance care directive
legislation was enacted in 1976 by the Californian legislature, 43 with other states
quickly following suit. This first generation of „living will‟ statutes was concerned
only with the refusal of life-sustaining procedures in the event of „terminal
illness‟ or „imminent death‟. However, such statutes that, for example, required
that death be „imminent‟ or occur within a „short time‟, were criticised as
substituting a time measure for the more appropriate question regarding the
futility of medical treatment. 44 Given the limited application of such statutes, a
40 (1976) 355 A.2d 647.
41 (1976) 355 A.2d 647.
42 Capron “Advance Directives” in Kuhse and Singer (ed) A Companion to Bioethics
(Blackwell Publishing 1998) at 264.
43 Natural Death Act 1976.
44 Gelfand “Living Will Statutes: The First Decade” (1987) Wisconsin Law Review
737, at 744.
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