Stuparich, J. (ed), (1992) Euthanasia, Palliative and Hospice Care and the Terminally Ill. A seminar held at John XXIII College, Australian National University, Canberra, 26 September 1992. Sponsored by the Australian Federation of Right to Life Associations. ACT Right to Life Association, Canberra, Australia. pp57-107.
Greg Smith []
The issues of euthanasia and assisted suicide are well and alive in contemporary Australia. It is quite common for a sympathetic media to portray the suicide of some celebrity as a "death with dignity", at times almost portraying it as something holy. The life ethic in our society is at a low ebb, particularly concerning the protection of those who are considered by some to be burdens on society, the handicapped newborn who may require surgery and aged people suffering from dementia.
Just as our cars, fridges and shoes are no longer made to last, so some people consider anyone who is not economically productive is expendable, in a society dominated by economic considerations. This view is sadly demonstrated by reports that the current recession has seen business booming in the abortion clinics.(2) Will we next see a call to an abortion led recovery?
Although it is difficult to gauge public opinion on the difficult and complex issues associated with death and dying, and although there is no public groundswell supporting euthanasia, some influential commentators, certain left leaning politicians and a few outspoken medicos have put it on the political agenda.
Two fundamental planks of the Voluntary Euthanasia Societies are the decriminalisation of suicide and patient autonomy established by living will legislation. In my view they have already made significant inroads for their cause and they are gaining momentum down the slippery slopes.
Euthanasia is the intentional killing of a person, for compassionate motives, whether the killing is by a direct action, such as a lethal injection, or by failing to perform an action necessary to maintain life, called an omission. For euthanasia to occur there must be an intention to kill. This intention makes it murder.
Assisted Suicide involves providing a person with the means of committing suicide and then allowing that person to perform the act.
Murder occurs when the death of a human being is caused by an unlawful act or omission with either intent to kill or to inflict grievous bodily harm or done with reckless indifference to human life.
Manslaughter occurs when the death of a human being is caused by an unlawful act or omission, the act or omission being either criminally negligent or unlawful and dangerous.
Negligence is the failure to observe the standard of care required by the law of a sane and reasonable person in the given situation. Criminal negligence is the very high degree of carelessness going beyond mere civil negligence and satisfying a jury that the accused's conduct showed such disregard for the life and safety of another or others as to amount to a crime against the State.
The test of dangerousness is objective, namely "would all sober and reasonable people recognise its danger?"
It is necessary to prove that the accused intended any harm to the deceased or realised that his act was dangerous or unlawful. The only intention required to be proved is the intention to commit the unlawful act. An act is "dangerous" if it subjects a person to at least the risk of some harm resulting, though it does not have to be serious harm.
In this paper I will examine how the law in the various States and Territories addresses euthanasia and associated matters. I will also examine some case studies.
Criminal law in Australia is mainly administered by the States and Territories, rather than the Commonwealth.
The States of New South Wales, Victoria and South Australia are called Common Law States. Their criminal laws include specific statutes as well as the common law (judge made law), inherited from England, but developed in Australia by decisions of judges.
The Australian Capital Territory applies the NSW Crimes Act and supplements it with local statutes.
The States of Queensland, Western Australia and Tasmania, and the Northern Territory have criminal codes which oust the common law. They also have statutes which concern specific types of crimes such as narcotics offences.
In the present context, the civil law relating to medical treatment and contract law is relevant.
The States of Victoria and South Australia and the Northern Territory have enacted legislation concerning medical treatment. The Western Australian Government is currently considering legislation. A Medical Treatment Bill based on the Victorian Act has recently been rejected by the Tasmanian Parliament and the New South Wales Government has scrapped an earlier proposal to enact legislation based on the South Australian Natural Death Act.
Despite the existence of codes in some States and Territories, the laws relating to murder and manslaughter are similar throughout Australia. Euthanasia is a criminal offence in each Australian jurisdiction.
Suicide, the intentional taking of one's own life, is no longer an offence in any Australian jurisdiction.
Attempted suicide is now an offence only in the Northern Territory. However it is an offence in all Australian jurisdictions to assist or encourage another to commit or attempt to commit suicide.
In New South Wales, Victoria, South Australia and the Australian Capital Territory statutory provisions preserve the power to use such force as is reasonably believed necessary to prevent suicide.(3)
In Queensland and Western Australia this situation, although not specifically covered, may fall within the power to use reasonable force to prevent a person of unsound mind from doing violence, although these provisions may be interpreted as being limited to controlling those who pose a threat to others and not themselves.(4)
Under Tasmanian law, there is a power to use force to defend another, a codification of an aspect of the common law concerning self defence.(5)
In the Northern Territory where the offence of attempted suicide still exists, a person may seek to prevent the commission of an offence by means of necessary force that is not likely to cause death or grievous bodily harm.(6)
Every competent patient has the right to refuse medical treatment provided he does not do so with the intention of committing suicide. Such a right has been long recognised by the common law.(7) Up until recently it was generally accepted that except as provided in statutes or where treatment is sanctioned by a court (8), an adult person's consent is necessary for any surgery or other medical treatment on that adult (9) (For the situation concerning treatment on minors see the discussion hereunder on Gillick's Case and its progeny). The law had recognised that a surgeon may perform an urgent operation on an unconscious patient who could not consent, where no next of kin was available (10), but even this area can have some risk of civil action for the doctor.
In Malette v Shulman (1988) 47 DLR (4d) 18, a decision affirmed on appeal, the Ontario High Court ordered a doctor to pay damages for giving an unconscious patient a life-saving blood transfusion. The patient carried a card stating that she was a Jehovah's Witness and the doctor saw the card before deciding to give her blood. The Court ruled that although the doctor had acted promptly and professionally, he had committed battery and he was ordered to pay (Canadian) $20,000 for "mental distress" caused to the patient.
Whilst Malette would horrify many casualty ward and intensive care ward doctors, according to The Times newspaper, the English Court of Appeal ruled on 30 July 1992 that sick persons have an absolute right to refuse medical treatment, even where such treatment is needed to save their lives. The Court is reported as further holding that such a right existed whether the reasons for refusing treatment were natural, irrational, unknown or even non-existent.
The case arose out of a decision by doctors to give blood transfusions to a woman who had signed a document refusing to accept transfusions. The Court actually upheld the doctors' decision, but only on technical grounds - it ruled that the woman was not properly informed of what her decision would mean, and had made it under the influence of one of her relatives, who had opposed the use of transfusions for religious reasons.(11)
Whilst some commentators claim this establishes a right to die, an assessment disputed by one of the presiding judges, it is clear that at least in those States which permit a person to use reasonable force to prevent suicide, this decision would not allow a right to suicide.
In a recent decision of the House of Lords(12), the Court although considering a case of whether a mentally incompetent adult should be sterilised, made a statement concerning medical treatment generally that at common law a doctor can lawfully operate or give certain other treatment to adults who are incapable of consenting to his doing so, provided that the operation or treatment is in the best interests of such patients. This case confirmed the common sense of the common law.
In my view this judgment would not authorise treatment which may just prolong the suffering of a dying patient. The doctrine of necessity is in my opinion inappropriate to justify surgery on an incompetent terminally ill patient, particularly if the health care team members reasonably believe that the patient only has a short time to live in any event.
The right to refuse treatment has been further qualified in 1991 at least in relation to minors by the English Court of Appeal in a case involving a 15 year old girl described only as "R", in the care of the local authority. R suffered increasingly serious episodes of mental illness characterised by violent and suicidal behaviour. Following one such episode during which she was detained in hospital, she was admitted to an adolescent psychiatric unit where the proposed programme of treatment included the compulsory administration of certain anti-psychotic drugs. The local authority initially consented to the proposals but after R, in a lucid interval, indicated that she would refuse any such treatment, they withdrew their consent and began wardship proceedings, applying for leave to permit the unit to administer the proposed medication without R's consent. On the hearing the consultant psychiatrist stated that unless the treatment was given, R would return to a psychotic state, but that between episodes she sufficiently understood the nature of her illness and the proposed treatment to be "competent" to give or withhold her consent. The primary judge granted the application to force treatment on the basis that her mental condition precluded her from achieving competence and that the proposed treatment was in her best interests.
The Court of Appeal, dismissing the girl's appeal, brought on her behalf by the Official Solicitor, ruled that the court in the exercise of the wardship jurisdiction was entitled to override a minor's decision either consenting to or refusing treatment, irrespective of his or her "competence"; that in any event having regard to the fluctuating nature of her illness, R was not "competent" to give or withhold her consent.(13)
This decision involved an interpretation of the principles established by the House of Lords in Gillick v West Norfolk and Wisbeck Area Health Authority.(14) The principle which seemed to have been established by Gillick was that parental rights cease when a child has sufficient maturity and understanding to make decisions for himself or herself.
Lord Donaldson MR considered that at least in respect of medical treatment, both the child and a parent may separately be competent to give consent. The other two judges were not prepared to go that far.
Two judges agreed that "Gillick competence" concerns the developing maturity of a child from infancy to adulthood, and not the state of a child's mind when his or her mental abilities fluctuate.
The Court confirmed the well established principle that the Court's parens patriae rights and powers do not diminish, like parental rights and powers, as a child grows older and develops maturity, but remains fully intact until a child attains the age of majority.
In Australia courts exercising jurisdiction under Section 64(1) of the Family Law Act may have similar non-diminishing rights and powers over children.(15)
In a recent wide ranging decision of the High Court of Australia involving a 14 year old mentally retarded girl, the Court by majority decided that in order to ensure the best protection of the interests of the child, the decision to cause a minor, suffering profound permanent intellectual incapacity, to be sterilised should not come within the ordinary scope of parental power to consent, but requires court authorisation - the appropriate Court being the Family Court.
The majority further held applying Gillick that the proposition that a minor is capable of giving informed consent when having a sufficient understanding and intelligence to be able to understand fully what is proposed, irrespective of any fixed age rule, should be followed in Australia as part of the common law.(16)
These latter cases concern minors with either psychiatric or intellectual disabilities. To date, courts have rigidly refused to override the expressed wishes of an apparently sane non-suicidal adult patient. An example of such an attitude is contained in Mr Justice Lee's judgement in the interesting case of Schneidas v Corrective Services Commission and others.(17)
Schneidas was a prisoner on a hunger strike in an advanced state of starvation caused by his refusal to take food. According to medical opinion he was likely to suffer irreparable damage to vital organs such as eyes, hearing apparatus, kidneys and pancreas if food was not taken. Death was inevitable a short time after such damage was suffered if food was not taken.
Schneidas sought an injunction restraining the Corrective Services Commission and others (the defendants) from administering food, drink or any other form of nourishment to him without his consent. He was protesting against segregation orders imposed upon him. He had been charged and was subsequently convicted of brutally murdering a prison officer.
His Honour found Schneidas' claim to be bona fide which
"raises the question of the power of the defendants to take action which, in the absence of statutory or common law justification, would amount to an assault upon the plaintiff".(18)
The defendants relied upon Section 16(2) of the Prisons Act 1952 as entitling them to feed Schneidas against his will and also under the common law, which they claimed entitled a prison authority to give food to a prisoner against his will.
Schneidas' Counsel argued that refusal to take food did not constitute failure to undergo medical treatment under Section 16(2) of the Prisons Act. He also submitted that forced feeding would not amount to medical treatment within the meaning of that subsection.
His Honour commented:
"I have no hesitation in concluding that to force feed upon a prisoner merely because he refuses to eat could not be justified under that section, but the evidence in the present case establishes a state of affairs going far beyond that".(19)
His Honour, after reviewing the evidence of Schneidas' condition and the likelihood of imminent organic crises, examined the meaning of the expression "medical treatment". He stated that:
"The expression 'medical treatment' as used in ordinary parlance has a very wide meaning; it comprehends at least all treatment given on the advice of a medical practitioner in his capacity as such ... the underlying element in the expression 'medical treatment' in its ordinary sense is that it is treatment which a person with expert knowledge of the human body and its needs, so far as health and survival are concerned, would give or recommend to a person. It contemplates that there is some condition in the body howsoever caused which requires, in the interests of health and/or survival, to be treated by someone who has a knowledge of medicine.
It is impossible to describe in detail what in fact makes up the whole field of medical treatment which might be offered and it would serve no purpose to seek to do so. Medical treatment, however, contemplates both active treatment such as operations, mending and repairing fractured bones, supplying drugs, and conservative treatment which required a patient to do no more than follow the advice given by the doctor, such as to have bed rest or to consume particular foods or to do exercises or the like."(20)
His Honour held that the proposed forced feeding was medical treatment within the meaning of the subsection.
His Honour also made observations on the defendants' other submission that they had the power as prison authorities (the first 3 defendants) and as a medical practitioner (the 4th defendant) at common law to compel the prisoner to take food.
After considering the only two authorities cited(21), His Honour commented:
"On those authorities I would hesitate before I would hold that there was any power in a prison authority at common law to force feed a person".(22)
He later stated:
"The right of a medical practitioner to treat a patient against his will has been the subject of comment by Lord Devlin in his 'Samples of Lawmaking', page 90:
Counsel for Schneidas referred to a number of cases showing that the law requires, in the case of treatment by a medical practitioner, that the patient give an express or implied consent and there can be no doubt that the cases establish this proposition. None of the cases referred to suggest that a medical practitioner may have a defence to a charge for assault merely from the fact that he acted in a patient's interest and to save the patient's life.
For the sake of completeness I mention that the doctrine of necessity, in so far as it excuses the commission of a criminal act, was considered in The Queen v Loughnan (1981) VR443 and the elements of the defence defined.
It is not necessary in the present case to take the matter further and I would hesitate to come to a conclusion that the defendant's proposed conduct could be justified by reference to common law principle".(23)
His Honour concluded by commenting that on the evidence the prisoner was in the course of attempting to commit suicide. That was still a crime in New South Wales in 1983, although it has since been repealed.
His Honour continued:
"He comes to this Court inviting me, in effect, to aid and abet him in the commission of that crime by removing an obstacle which stands in the way of him carrying out his intention. I firmly refuse to do so. I make it clear that I would not participate to any extent at all in the wilful destruction of the plaintiff's life; to injunct those who would save his life, would make me a participant."(24)
Since this decision the common law misdemeanours of suicide and attempted suicide have been abrogated. However the offence of aiding and abetting suicide has been enacted (Section 31c, Crimes Act) as has the right to take action to prevent suicide (Section 574B of the Crimes Act), mentioned earlier. Section 574B in my view should protect health care professionals from liability for saving the lives of persons who attempt suicide by for example, overdosing on sleeping tablets.
Lord Devlin's comments quoted in Lee J's judgement law appear to have been qualified in part by Gillick. There it was held by 2 judges that the bona fide exercise by a doctor of his clinical judgement as to what he honestly believed to be necessary for the physical, mental and emotional health of his patient was a complete negation of the guilty mind which was essential for the commission of a criminal offence, such as assault.(25)
Mr Justice Fullager of the Victorian Supreme Court took a similar approach to Lee, J in In re Graham Michael Kinney: Application by Tahlia Kinney 23 December, 1988 (unrep).(26)
This case involved an application by a patient's wife for an injunction to restrain doctors at St Vincent's Hospital, Melbourne from conducting an exploratory operation to locate the source of very substantial bleeding which they had caused when they inserted an instrument down his throat to assist his breathing.
The patient had attempted suicide by overdosing on drugs while on bail he having been charged with the murder of his mother-in-law. Without finding the source of the bleeding and stopping it, the patient could be kept alive by successive blood transfusions but blood supplies were limited.
The patient's wife claimed in support of her application to restrain any operative or invasive procedures that her husband should be allowed to die, because he was suffering from leukaemia and wished to die, and to bring him back from the brink of death would in the circumstances be cruel and inhuman.
The patient had not made a direction under the Medical Treatment Act and was still unconscious.
His Honour in refusing the application for an injunction stated:
"It would require very powerful considerations indeed to persuade the court to extend that remedy to prevent doctors from saving the life of a person.
This is especially so now in the light of the act of Parliament to which Mr Wheeler drew attention viz. the Medical Treatment Act of 1988. Further I think even more powerful considerations would be required to persuade the court to grant an injunction when the preventing of the medical or surgical treatment amounts to carrying into execution the attempted suicide of the person concerned. To grant the injunction would be to assist the person to complete his suicide" (emphasis added).
In summary, competent patients have the right to refuse treatment as do unconscious patients who have clearly expressed their wish. Medical practitioners who seek to force treatment on an unwilling patient risk civil action and perhaps prosecution for assault, unless their actions are justified under Section 574B of the Crimes Act (NSW) or its equivalent to prevent suicide, under some other statutory protection or unless the patient is of unsound mind and the action results from a bona fide decision by a doctor who satisfies the Gillick criteria mentioned above.
Undoubtedly the most difficult and contentious aspect of the law governing medical treatment is that concerning the terminally ill. Largely as a result of confusion concerning the legality of non-resuscitation orders in November 1990, the then New South Wales Minister for Health, Peter Collins, released a Discussion Paper prepared by his Department seeking community comment on New South Wales Government proposals for legislation to protect medical practitioners who do not revive terminally ill patients in certain circumstances.
It was stressed by Mr Collins that the Discussion Paper was not a mechanism for introducing voluntary euthanasia, which had been ruled out as an option by the Government.
The Discussion Paper recommended a model statute based on the South Australian Natural Death Act.
Mr Collins said that the Discussion Paper was prepared following advice from the Crown Solicitor "that there was a problem in existing laws for dealing with health professionals, who mark a patient record chart 'not for resuscitation'". The advice said that such action by a doctor or other health worker could be interpreted as negligence or even a criminal offence, such as murder or manslaughter.(27)
Statements in the Discussion Paper and aspects of the advice of the Crown Solicitor were heavily criticised both in written submissions to the Department and at a Forum conducted by the NSW Department of Health and the Australian Medical Association in June 1991 in which I participated, mainly on the basis that the advice ignored the realities of ethical medical conduct and long standing prosecution practice.
The NSW Government has recently announced that it has scrapped the proposed legislation following advice to the Health Minister Mr Phillips from senior officials in the Health Department that the legislation is unnecessary.(28) The Government has subsequently circulated draft guidelines for public hospital staff caring for terminally ill patients.
This important decision was clearly influenced by the written submissions as well as the overwhelming view of the participants in the June Forum, who included specialist medical practitioners, including intensive care and palliative care experts, nurses, lawyers, theologians, insurance company representatives and social workers.
As NSW has opted to continue applying the common law and as some other States are still struggling with the issue, it is appropriate to examine the legal arguments which arose during the period of consultation.
The Crown Solicitor claimed early in his advice:
"If a person makes a deliberate decision to withhold or withdraw life saving treatment from a patient, thereby occasioning the death of such a patient, this decision might conceivably, according to the circumstances, lead to a conviction for murder" (Claim One).
Undoubtedly if the act or omission is done, with intent to kill and death follows as a result, then Claim One is correct. However Claim One appeared during a consideration as to the use of "not for resuscitation orders" on a patient's record at some time earlier than when the issue of withdrawal or withholding of treatment arises, and it was assumed that such notation was made in accordance with the wishes of the patient and not otherwise.
In my view Claim One was confusing, and unnecessarily provocative in that it totally ignored the realities of ethical medical treatment of the terminally ill.
Claim One assumed the withholding or withdrawing of treatment caused the death of the patient. As has been demonstrated in the exceptionally rare prosecutions of doctors for allegedly killing their patients, it is most difficult to prove that the cause of death of a person who was suffering from a terminal illness was as a result of some act or omission of the doctor. In any event the statement is too broad. It ignores the highly relevant circumstances leading to the decision to withdraw from or not administer treatment to a patient. One important circumstance which must be considered is the state of the person's health.
Mechanical ventilation is usually undertaken as a means of buying time for a patient in respiratory failure while the patient's body recovers from a trauma and to allow time for the application of treatments aimed at achieving that recovery. It is a short term measure used when there is hope that recovery my be achievable.(29)
When it becomes clear that the patient is not improving and prolonging ventilation is causing burden to the patient, it is legitimate to turn the ventilator off. This view is powerfully supported by eminent academics and judges.
Professor Glanville Williams has argued that the switching off of a ventilator is not an act of killing but an expression of a decision by a doctor not to continue to strive for the patient's life.(30)
As referred to in the Crown Solicitor's advice, Glanville Williams has also stated his opinion of the scope of the doctor's duty at common law, as follows:
"A doctor must never do anything actively to kill his patient, but he is not bound to fight for the patient's life forever. His duty in this respect is to make reasonable efforts, having regard to customary practice and expectations, and in particular having regard to the benefit to the patient to be expected from future exertions".(31)
In R v Malcherek, R v Steel a murder case in which the appellant inflicted grievous bodily harm on the victim and the victim died after hospital intervention to save her failed, Lord Lane CJ stated:
"Whatever the strict logic of the matter may be, it is perhaps somewhat bizarre to suggest, as counsel have impliedly done, that where a doctor tries his conscientious best to save the life of a patient brought to hospital in extremis, skilfully using sophisticated methods, drugs and machinery to do so, but fails in his attempt and therefore discontinues treatment he can be said to have caused the death of the patient".(32)
Helen Beynon, writing after two contentious court cases, each involving treatment of a sick Downs Syndrome baby, commented on the continuing debate as to whether switching off a ventilator could be classified as an act of omission:
"No doubt one should not try to state rigid rules for distinguishing between acts and omissions, but perhaps the distinction in this context is that if the doctor's course of conduct made the patient's condition worse, it should be described as an 'act', whereas if it failed to make the patient's condition any better, it should be described as an 'omission'."(33)
Whilst this view appears more logical than some, it fails to take into account unexpected problems, such as a patient having a heart attack or a stroke. The doctor would not be criminally liable in such a case unless mala fides can be demonstrated. It also disregards a relevant consideration by the doctor - the degree of burdensomeness likely to be caused by further treatment.
This view is supported by much quoted statements of Hughes, J of the New Jersey Supreme Court in the famous case of Re Quinlan where he said:
"We think that the State's interest" in the preservation of life "weakens and the individual's right to privacy grows as the degree of invasion increases and the prognosis dims".(34)
And where he later said:
"The focal point of decision should be the prognosis as to the reasonable possibility of return to cognitive and sapient life, as distinguished from the forced continuance of that biological vegetative existence".(35)
The Crown Solicitor expressed the following further opinions in his advice:
"It would be most imprudent to assume, in the absence of a clear statutory authorisation, that the withdrawal of withholding of life saving treatments from a patient could not give rise to serious criminal liability on the part of persons concerned with the medical welfare of such patient."
In the light of prosecution practice and experience in Australia, where from my research no charges have been brought against doctors and practice in the United Kingdom (3 prosecutions in 25 years) and the USA (1 prosecution) where no doctor has been successfully prosecuted for withdrawing or withholding medical treatment, in my view these comments are overcautious and ignore practical experience. The common law's flexibility is in my view superior to any statute which has been or is likely to be drafted in this very sensitive and difficult area.
The United Kingdom has not seen the need to enact medical treatment or natural death legislation. Its courts have shown flexibility in this area. It is submitted that an analysis of the cases shows a consistent concern with the best interests of the patient. Some cases involving a clash of sincerely held concerns cause considerable heartache, which legislation would not remedy. For example, on 3 June 1992 the English Court of Appeal ruled that a mother could not force doctors to put her severely brain-damaged son on a life-support machine. Although they didn't publish their reasons at that stage the judges referred to the child's poor chance of survival and exacerbation of his pain and distress which would be caused by the use of the machine.
In another case on 30 June 1992 the English Court of Appeal upheld a ruling that gave doctors permission to treat a 16 year old anorexic girl against her will. The girl was reported to be close to the point of brain damage because of starvation. The Court held that the doctor's decisions on the best possible treatment for her must override her wishes.
In another recent case the mother of a child with cancer has been taken to court by doctors because she is allegedly refusing to allow the child to have treatment which has only a 30% chance of success.(36)
The three English cases referred to above involve the unsuccessful prosecutions of Dr John Bodkin Adams in 1956, Dr Leonard Arthur in 1981 and Dr Thomas Lodwig in 1990. The American case involved the unsuccessful prosecution of Drs Neil Barker and Robert Nejdl in California in 1983. I will also refer to the unsuccessful prosecution of a Sydney nurse, Marilyn Bodnar in 1988.
In 1956 Dr John Adams was arrested and charged with the murder of an 81-year-old patient, Mrs Morrell, who had died in 1950. At the committal proceedings evidence was led to show that Dr Adams had prescribed and administered to Mrs Morrell such large quantities of drugs, particularly heroin and morphine, that he must have known the result would be to kill Mrs Morrell.
Even though there might be some cases, for instance where the patient was suffering severe pain or restlessness, in which a doctor might be justified in administering very large doses of pain-killing drugs, it was alleged by the Crown that this elderly lady was not suffering either from severe pain of restlessness to such an extent as to justify such doses, and in fact was in a coma for the last days of her life.
At the trial devastating new evidence was introduced by the defence which fundamentally altered the nature of the case. Firstly, the notes made by nurses attending Mrs Morrell at the time of her last illness were produced and these demonstrated the nurses' recollections after a lapse of six years were very unreliable (the trial judge told the jury two of the nurses had lied in evidence). Secondly, the hospital records relating to the time prior to Mrs Morrell coming under Dr Adams' care showed that another doctor had considered it right to prescribe morphine for Mrs Morrell for eight days in hospital prior to her becoming a patient of Dr Adams.
The Crown led evidence of motive which could also damage Dr Adams' credit. Dr Adams was a beneficiary under Mrs Morrell's will and knew that he was, yet he falsely stated in the cremation certificate that he was not a beneficiary , so far as he was aware.
One of the medical experts called by the Crown at the trial gave evidence that in his opinion the dosages of morphine given to the deceased shortly prior to her death must have been intended to kill her. Another medical expert called by the Crown initially said the deceased could not have survived the quantity of morphine and heroine given to her by Dr Adams or by nurses on his instruction during the last few days of her life but later in cross examination he agreed he could not rule out the possibility that death was the result of natural causes, for example, a further cerebral haemorrhage. Both Crown medical experts were opposed to dispensing narcotic drugs for Mrs Morrell's condition.
A defence medical expert was not prepared to condemn the use of narcotics for Mrs Morrell. In his opinion, death was not caused by morphine and he did not regard the doses as freak doses. Although he had never used such drugs on patients who, like Mrs Morrell, had suffered a stroke, in his opinion most of her symptoms were those of her illness not the medication - the dosage contributed neither directly nor indirectly to her death.
Devlin, J (later Lord Devlin) directed the jury that murder was an act or series of acts, done by the accused which were intended to kill and did in fact kill. It did not matter whether Mrs Morrell's death was inevitable and that her days were numbered. If her life was cut short by weeks or months it was just as much murder as if it was cut short by years. There had been a good deal of discussion as to the circumstances in which doctors might be justified in administering drugs which would shorten life. Cases of severe pain were suggested and also cases of helpless misery.
The law knew of no special defence in this category, but that did not mean that a doctor who was aiding the sick and dying had to calculate in minutes or even hours, perhaps not in days or weeks, the effect on a patient's life of the medicines which he would administer. If the first purpose of medicine - the restoration of health - could no longer be achieved, there was still much for the doctor to do, and "he was entitled to all that was proper and necessary to relieve pain and suffering even if the measures he took might incidentally shorten life by hours or perhaps even longer. The doctor who decided whether or not to administer the drug could not do his job if he were thinking in terms of hours or months of life" (emphasis added). The defence in the present case was that the treatment given by Dr Adams was designed to promote comfort, and if it was the right and proper treatment, the fact that it shortened life did not convict him of murder.
His Honour pointed out anomalies in the Crown case and was critical of the evidence of motive, the discredited assertion that Dr Adams was greedy for a share of Mrs Morrell's estate.
The jury acquitted Dr Adams. The Attorney General, who prosecuted the case, entered a nolle prosequi in respect of a second indictment against Dr Adams for the murder of a Mrs Hullett and Dr Adams was discharged.
It was 25 years before another doctor stood trial for murder arising out of treatment. Dr Arthur stood trial in November 1981 at Leicester Crown Court before Farquharson, J and a jury initially for the murder then, after the trial started, for the attempted murder of John Pearson, a newly born Downs Syndrome child. John's mother had rejected him. Dr Arthur, a highly respected consultant paediatrician, saw the child's mother and father soon after the birth and wrote on the hospital notes, "Parents do not wish the baby to survive. Nursing care only." He entered on the treatment chart a prescription for a drug, dehydrocodeine (DF118), to be given "as required" in dosages of 5mg at four-hourly intervals by the nurse in charge. The drug company which manufactured DF118 specifically directed it should not be given to any baby less than 4 years old. The baby died 54 1/4 hours after birth in July 1980, the cause of death being stated to be bronco-pneumonia as a result of Downs Syndrome.
The Crown alleged on the basis of the evidence of a pathologist, Dr Usher, that the cause of death was lung stasis produced by DF118 poisoning; and that the poisoning was the result of a decision by Dr Arthur to cause the death of the child.
Doubt was cast on the evidence of Dr Usher by Professor Emery for the defence who established that the child was suffering from certain defects before birth. Since the child may have died from these inherent defects and not as a result of anything done after his birth, Farquharson J directed that the murder charge be dropped and replaced by one of attempted murder.
The judge treated the distinction between act and omission as crucial. It was for the jury to say whether "... there was an act properly so called on the part of Dr Arthur, as distinct from simply allowing the child to die".
His Honour also stated:
"However serious the case may be; however much the disadvantage of a mongol, indeed, any other handicapped child, no doctor has the right to kill it."
On the other hand, the judge advised the jury, no one could say that a surgeon was committing an act of murder by declining to operate on a mongol child with duodenal atresia and so allowing the child to die.
M.J. Gunn and J.C. Smith, authors of an article entitled Arthurs Case and the Right to Life of a Downs Syndrome Child (1985) Crim LR 705 were critical of some aspects of the trial judge's summing up.
Consistent with Devlin J in Dr Adams' case, the judge stated clearly that the administration of a drug by a doctor when it is necessary to relieve pain is a proper medical practice even when the doctor knows that the drugs will themselves cause the patients' death.
If the sole purpose of the administration of DF118 was to prevent the child from suffering, it might be justified on that principle. There was some evidence, however, that the purpose was to stop the child seeking sustenance. Dr Arthur had admitted to the police that this was the effect of the drug.
This would be clearly outside the Dr Adams case principle.
One of Dr Arthur's main witnesses, Professor Campbell, suggested that this is a justifiable practice. The judge would have been justified in commenting that this approach constituted murder. The judge however made no such comment.
In a Memorandum on this case written by Mr Gerald Wright, QC, a leading English Criminal lawyer, Mr Wright is scathing in his criticism of the judge's summing up emphasising that the expression the judge repeats of "simply allowing the child to die" in the circumstances of this case was homicidal conduct in itself. In my opinion Mr Wright's analysis is correct.
Not surprisingly, in view of the unbalanced summing up, Dr Arthur was acquitted.
Dr Thomas Lodwig, a former senior house officer at Battle Hospital, Reading, was charged with murdering a patient with terminal carcinoma of the pancreas who died on 29 September 1988. He was committed for trial by the Reading Magistrates in 1989.
On 15 March 1990, he was acquitted by direction at the Old Bailey after the prosecution decided to offer no evidence at his trial.
The facts which certainly appear to have warranted investigation and prosecution were that by 29 September 1988 the patient, no longer lucid, was in continuous and uncontrollable pain and having fits. He was expected to die at any time and his family pressed Dr Lodwig to do "something - anything" to relieve the pain. Dr Lodwig, a junior doctor who had been on duty for some 80 hours that week, asked a nurse to bring him potassium chloride and lignocaine. In response to the nurse's inquiry, and before giving the injection, Dr Lodwig had replied by saying, "I'm sending someone out there" and drew a finger across his throat and pointed in the air (claimed by his counsel as said in jest to lighten the atmosphere). A few minutes later the patient died peacefully. Dr Lodwig's notes did not carry a record of the administration of potassium chloride and lignocaine or the precise time of death.
When the patient died only a few minutes after the injection, the nurses on the ward became very suspicious and the following evening the hospital administration called in the police, who regarded the death as suspicious.
The forensic pathologist retained by the Crown determined the cause of death as acute potassium poisoning, a view he adhered to, although in court the prosecution admitted that its chief medical witness, a professor, was no longer wholly convinced that the patient had died from a potassium overdose.
There were three further possible causes of death. For several weeks before death, the patient had received regular injections of heroin in increasing doses for pain relief. Shortly before his death the heroin no longer controlled the pain although very high morphine levels were revealed following death.
It was clear, therefore, that the patient could have died from the effects of heroin at any time, or from his cancer, which was very advanced. He also had significant narrowing of the coronary arteries.
It was said on Dr Lodwig's behalf that his intention had been to kill the pain and not the patient and that he had tried a method which had been the subject of experiments conducted by professors at St Bartholomew's Hospital, London - namely, the use of potassium chloride with pain killers to accelerate their analgesic effect. They had used a combination of the drugs used by Dr Lodwig, and results from animals and clinical trials, had reportedly been "encouraging"; as yet these had not been published. Dr Lodwig finished his training at St Bartholomew's three years previously.
This appears a strong prosecution case. In my view policy reasons appear to have taken over.
It will be seen from the above that each of the three cases involved acts by the doctors charged rather than omissions. There appears to have been no case in Australia or the British Commonwealth where a doctor has been charged for homicide caused by omission, although as will be seen, the Bodnar case involved a prosecution of a nurse for manslaughter by omission.
This appears to be the only case in US legal history where doctors who had withdrawn life-sustaining procedures from an adult patient were prosecuted.
Clarence Herbert, a 55-year-old cancer patient, underwent a normally routine operation in 1983 for closure of an ileostomy. The surgery was performed by Dr Robert Nejdl, Chief of Surgery, City Hospital of Los Angeles, California. However Herbert, who had a history of cardiac problems, suffered a cardiac arrest in the recovery room. By the time he was resuscitated, he had experienced massive brain damage.
Herbert was immediately placed on a life-support system consisting of a ventilator, intravenous (IV) feedings, and antibiotics. For 3 days he remained in a deeply comatose state. A neurologist diagnosed Herbert as having irreversible brain damage, with the likelihood that his vegetative state would be permanent.
When Dr Neil Barber, the attending physician, informed Herbert's family of the poor prognosis, they asked that all heroic measures be stopped. Dr Barber asked the family to put their request in writing. Herbert's wife and eight children then drafted and signed a statement saying they wanted "all machines taken off that are sustaining life".
Barber removed the respirator and was surprised when Herbert began to breathe spontaneously. Like Karen Quinlan, Herbert was non-responsive, irreversibly brain-damaged, being maintained through IV feedings and antibiotics, but nevertheless breathing on his own. Two days later, Barber acceded to the family's request that the IV feedings be discontinued. Herbert died that same day but only after Dr Nejdl and the Intensive Care Unit supervising nurse had a serious disagreement over Dr Nejdl's order that Herbert not be provided a misting machine after removal of the respirator. The nurse believed that not misting Herbert violated standard ICU procedures.
The nurse contacted the District Attorney 3 days later, claiming that the doctors had dehydrated Herbert. After investigating the case, the DA charged Drs Barber and Nejdl with 2 felonies: conspiracy to commit murder and murder, defined as "the deliberate, intentional taking of the life of another".
The municipal court judge who conducted the preliminary hearing discharged the 2 accused, ruling that there was no evidence of unlawful conduct or malice aforethought - they had acted in good faith, made sound and ethical judgements, and did not "kill" Herbert, since their conduct was not the proximate cause of death. The judge concluded that "in severely terminal cases, the community understanding is clear; that is, termination of all life-support systems is indicated at some point during the dying process."
The DA successfully appealed to the Superior Court. The Superior Court judge ruled that under Californian law, the intentional taking of life of another constitutes murder. He stated that since Herbert had not been brain dead and also had not signed a directive under the Californian Natural Death Act - the two statutory exceptions to the homicide law as it applies to doctors - the doctor's actions in withdrawing treatment were potentially criminal. The original charges against the physicians were thus reinstated.
On appeal the Californian Court of Appeal overturned the Superior Court's ruling and held that the felony charges could not be brought against the 2 doctors. The Court stated that the legal basis for treatment abatement was not limited to patients who had executed directives under the Natural Death Act. The Court confirmed that the right to refuse medical treatment in California had been recognised year before the Natural Death Act was enacted.
As to the charge of "unlawful killing" the court stated that the cessation of "heroic" life-support measures "is not an affirmative act but rather a withdrawal or omission of further treatment". Moreover, the Court said:
"Even though these life-support devices are, to a degree, 'self-propelled', each pulsation of the respirator or each drop of fluid introduced into the patient's body by intravenous feeding devices is comparable to a manually administered injection or item of medication. Hence, 'disconnecting' of the mechanical devices is comparable to withholding the manually administered injection or medication."
Furthermore, the Court stated that, in terms of ethics and law, the removal of the respirator and the discontinuation of artificial feeding can be the same. The question with these or any other life-prolonging technology is "once undertaken, at what point does it cease to perform its intended function?" To state it another way, the issue of appropriate treatment abatement involves "the determination of whether the proposed treatment is proportionate or disproportionate in terms of the benefits to be gained versus the burdens caused."
The Court thus concluded that "a physician has no duty to continue treatment, once it has proved to be ineffective." Also, when that ineffective treatment is being used to prolong the life of a permanently unconscious patient for whom no formal guardianship proceedings have been instituted, the patient's wife and family may be regarded as appropriate decision makers. In deciding to abate treatment on the patient's behalf, these surrogates should first be guided by knowledge of the patient's views and, "if it is not possible to ascertain the choice the patient would have made", then by a determination of the patient's best interests. In the Herbert case, the first alternative was possible for the family, since he had previously indicated that he did not want "to be kept alive by machines" or "become another Karen Quinlan".
I find the Barber Case disturbing in that the cutting off of nourishment may itself lead to death by starvation or dehydration. However as death in this case occurred so soon after removal of tubes, it may be the patient would have died then anyway.
The proposition by the Appeal Court in Barber that if the patient's own wishes were not known then a decision could be made as to whether to continue treatment based "on a determination of the patient's best interests" is analogous to principles held by the British courts to apply to treatment for seriously disabled newborn babies: In re C (a Minor) (Wardship: Medical Treatment) (1989) 3 WLR (CA) 240; very premature babies In re J (a Minor) (Wardship: Medical Treatment) (1991) 2 WLR 140 (CA); mentally handicapped teenagers of whom sterilisation is proposed In re B (a Minor) (Wardship: Sterilisation) (1987) AC 199 HL (E); and mentally disordered adults for whom sterilisation is proposed In re F (Mental Patient: Sterilisation) (1989) 2 WLR 1025 HL (E). Indeed the court in this last case applied the principle to all incompetent patients. These decisions may be highly persuasive to Australian Courts.
Mrs Bodnar was a registered nurse and midwife. On 19 December 1986 police were called by a doctor to her home at Heckenberg near Liverpool. There they discovered the emaciated dead body of Mrs Narelle Niemann, aged 42. The deceased had died from heart failure caused by fasting. She had not eaten for 41 days. Put simply, she had starved to death. Both the deceased and Mrs Bodnar believed in alternative medicine and both were members of the Natural Society and the Organic Growers Society. They became close friends. The deceased was particularly disillusioned with orthodox medicine.
On about 17 October 1986 the deceased began a fast in order to clear her body of toxins. She had suffered from cystic fibrosis and her 5 year old daughter had died from this disease. The deceased had taken prescribed medication some years ago and according to her husband she believed that fasting would remove these chemicals from her body. She wanted to have another child and apparently believed that the fasting would remove toxins from her body and prevent a recurrence of the earlier tragedy.
Mrs Bodnar had agreed to look after the deceased's four year old son and provide her with a peaceful environment while she fasted. The deceased had been fasting on a water only diet, when she arrived at Mrs Bodnar's home. Mrs Bodnar took the deceased's brief medical history upon arrival noting that she had taken Thyroxine for nearly 20 years but had stopped taking it 3 years previously.
The deceased gave Mrs Bodnar money for her son's food and some toiletries, but paid no money otherwise.
The deceased fasted for the next 25 days on water alone. Mrs Bodnar at the deceased's request then performed an enema on her, as she was unable to defecate.
As the fast continued the deceased's body smelt of a foul odour. Mrs Bodnar offered food but the deceased declined it.
After 41 days, the deceased complained of a burning sensation in her mouth and stomach and claimed she could taste the vibramyan which she had taken 10 years previously. Mrs Bodnar gave her some fruit juice, which the deceased vomited up an hour later. She then returned to her water diet.
By the 46th day she wanted to try fruit juice again. She had apparently had a fever since trying the fruit juice the first time. She took fruit juice for 15 days and had 3 days of one fruit meal and juices.
On 16 December 1986 the deceased's bowels were loose and in the afternoon Mrs Bodnar gave her another enema. The deceased had no desire for food, the pain in her abdomen was increasing, as was her temperature.
On 19 December 1986 the deceased's bowels were loose and in the afternoon Mrs Bodnar commenced checking her every 15 minutes. At 5.30pm she found the deceased unconscious and she had wet her bed. Mrs Bodnar tried to ring a doctor but he was delayed in coming. On his arrival at 6.30pm an hour after Mrs Bodnar had rung, the doctor found the deceased to be dead and her body was cold.
When interviewed by police Mrs Bodnar stated she had given full nursing care to the deceased for the whole of her stay and that one week prior to her death, the deceased was in good spirits and showed vitality.
In a second interview Mrs Bodnar said she had suggested to the deceased on the day she died she should seek medical treatment, she being of the opinion that the deceased required it. She didn't consult a doctor about her condition and didn't consider it necessary to call an ambulance on the day of her death as she was still breathing.
For three days prior to her death the deceased only got out of bed to go to the toilet and when she did she crawled on her hands and knees so as not to fall over. On two other occasions mothers had stayed at Mrs Bodnar's house and fasted.
The post mortem report by Dr Pirie indicated that the deceased died from acute myocardial ischaemia due to starvation. He found there had been a fall in blood pressure which deprived the heart of blood as a result of not eating over a long period.
An expert nutritionist, Professor Wahlquist stated that the photographs of the deceased indicated a state of protein energy malnutrition and in all probability she was in a state of high risk from about the 40th day of her fast. He also was of the opinion that there was no scientific basis for believing that fasting will counter the adverse effects of drugs, medications or other chemicals taken prior to the fast. He was highly critical of Mrs Bodnar.
The first trial had been aborted after a television news service broadcast a prejudicial report of the trial on the evening before the trial judge was to commence his summing up.
At the second trial Judge Johnson QC directed the jury on manslaughter by omission in the following terms:
"The Crown alleges that the accused is guilty of manslaughter by an omission to act in circumstances where she was under a legally recognised duty to act, with the consequence that death resulted.
The Crown must prove the following:
Duty of Care
There are a number of situations where failure to act may constitute a breach of legal duty. However in this particular case we are only concerned with one. The Crown has alleged and presented its case on the basis that the accused stands in a certain status relationship to the deceased. That of a professional capacity of a nurse caring for a patient. The Crown alleged that the accused voluntarily assumed responsibility for the care of Narelle Niemann at her home throughout the period of the deceased fasting. If the accused voluntarily assumed the care of Narelle Niemann in the circumstances outlined, then having assumed it, she is held to be under an implied legal duty to care for and protect her. In determining whether such a relationship did exist, you must eliminate from the case all consideration of mere moral obligation and discover whether the accused was under a legal duty towards Narelle Niemann at the time of her death.
Omission
In order that the homicide by omission may be criminal, the omission must amount to what is sometimes called gross and what is sometimes called culpable negligence. These must be more than just carelessness. The negligence has been described as being such that the accused was reckless whether such person died or not. The omission must be plainly inexcusable amounting to something in the nature of wicked or gross negligence. Mere negligence will not do, there must be wicked negligence, that is, negligence so great that you must be of the opinion that the accused had such a wicked mind, in the sense that she was reckless and careless whether the accused died or not.
Professional Relationship
She is bound and entitled to be judged in relation to the fact that she is a member of a recognised profession with special knowledge, duties and privileges.
Her criminal responsibility is to some extent wider than that of the unqualified person because she is expected to be able to take measures and avoid errors for which someone who lacks her technical knowledge, and assumes no such professional responsibility is not held accountable. On the other hand, she is entitled to the benefit of her professional competence. For example, she may justifiably make a decision in relation to a patient which turns out to be wrong, or administer treatment involving a high degree of danger to the patient which she mistakenly supposes to be necessary under the circumstances, which would amount to criminal negligence in an unqualified person."
The Crown Prosecutor sought a redirection taking issue with the use of the word "wicked" which he submitted on present day use required a higher degree of culpability than the law required. His Honour declined. The jury subsequently acquitted Mrs Bodnar.
These cases clearly show the difficulty in obtaining convictions against health professionals for acts or omissions leading to death. This difficulty remains, whether legislation like the Medical Treatment Act 1988 (Vic) is in force or not. Perhaps this is because juries are not easy to convince that misguided compassion should be punished by the criminal law.
Nevertheless in my view the common law leaves open the possibility of such suspicious deaths being investigated and prosecuted. Once the homicide laws are altered to exempt health professionals from culpability for acts or omissions consented to by the patient or his agent in my view the likelihood of full investigation and subsequent prosecution diminishes. This may explain why such cases are more often prosecuted in England than the United States. England has no "Living Will" legislation. Most American States have such legislation.
Undoubtedly the most controversial cases involving conduct by health care professionals which may be homicidal concerns newly born physically handicapped babies. I have referred above to the trial of Dr Arthur for attempted murder of a handicapped child.
The South Australian Health Minister, Dr Hopgood has recently been reported as saying that he would support laws allowing doctors to withdraw medical treatment from babies in "extreme cases". He told a July 27 conference in Adelaide that an important issue in considering such laws is the quality of life of the parents as well as the child. He also claimed legislation of this kind would merely legalise what is already standard practice in Australian hospitals.(41)
Considerable publicity has recently been given to a Coroner's Inquest into the death at the Royal Children's Hospital in Melbourne of a severely handicapped baby.
On 15 July 1989 a baby, described as Baby M, was born with spina bifida with deformed feet, knees and hip, suffering from paralysis from the waist down. The baby also suffered moderate hydrocephalus.
A neonatal specialist who examined the baby said that she would be paraplegic with no prospect of ambulation, would have permanent incontinence of urine and faeces, and had no prospect of sexual function. He said surgery to close the lesion on her spine would carry the risk of death from infection, mental retardation and epilepsy if Baby M survived infancy, she would need additional surgery and would have reduced life expectancy.
After discussion with the parents, it was decided not to treat her surgically but to feed her on demand and administer paracetanol and phenobarbitone. The phenobarbitone treatment was stopped about 5 days later, after police acting on a complaint from Right to Life Victoria visited the hospital and questioned staff. As what appears to have been insurance, the hospital called in other specialists who concurred in the treatment.
The baby developed respiratory difficulties 10 days after birth and morphine treatment was commenced. She died 12 days after birth.
The inquest was surrounded by controversy which led to an extraordinary attack on Right to Life Victoria after the Coroner's findings were published. This was most unfortunate as it distracted from the real issues in the case and effectively stifled informed public discussion.
The facts of the case as analysed by Karin Clark in a scholarly but pragmatic article published in the May 1992 Law Institute Journal are to say the least disturbing.(42) When considered with the Baby N case which involved the same specialist paediatrician and the same hospital, around the same time it appears that a further investigation is warranted into the practices of treatment of severely handicapped children at the Royal Children's Hospital in Melbourne and probably elsewhere.(43)
In the Baby M case the forensic pathologist who performed the autopsy found the cause of death to be drug toxicity (phenobarbital and morphine) and bronchopneumonia in a baby with spina bifida operata. The Deputy Coroner changed the emphasis stating that:
"Both drugs were present at levels capable of causing death, but there was no evidence to say that they had caused death, as they were present with other factors capable of causing death."(44)
A most disturbing aspect of both the Baby M and the Baby N cases is the use of phenobarbitone. A conflict arose between the medical experts in the Baby M inquest on the appropriateness of using phenobarbitone as a pain killer.
The expert called by Right to Life Victoria who was a Professor of Paediatrics from a major Californian hospital testified that the doctors should not have used phenobarbitone in the circumstances because it was a sedative rather than an analgesic (pain killer) and tended to depress the urge to feed.
The Deputy Coroner did not discuss the actual nature of phenobarbitone (although she referred to it as an analgesic), but found that its use was appropriate in this case and had been "long accepted in Australia".(45)
The law should apply consistently to handicapped newborn, to healthy newborn, to primary school age children, to teenagers, to mature adults, to the sprightly octageneran and the aged suffering dementia. However, as has been seen from the discussion on Dr Arthur's case above, some judges seem to condone reduced standards at each end of the spectrum of life.
In 1986 Mr Justice Vincent of the Victorian Supreme Court in re E (46) considered an urgent application by the grandfather of a 10 day old spina bifida baby who was a patient at the Queen Victoria Hospital, Melbourne. The applicant was concerned that a decision had been made to sedate the child and withdraw sustenance.
His Honour made an interim order that the child be given sustenance and stated his understanding of the law as being:
"... no parent, no doctor, no court, has any power to determine that the life of any child, however disabled that child may be, will be deliberately taken from it ...".
The law "does not permit decisions to be made concerning the quality of life, nor does it enable any assessment to be made as to the value of any human being."(47)
This approach is consistent with the case law concerning criminal liability for acts.
The English Court of Appeal has delivered 3 significant judgements in civil cases dealing with treatment of handicapped babies over the last decade.(48) The last of these, In re J decided in October 1990 reflects a weakening in the respect for the sanctity of life recognised in the first, In re B decided in 1981. In the latest judgement the Court held:
1. That although there was a strong presumption in favour of the preservation of life no principle of public policy in its sanctity displaced the paramountcy of the ward's best interests and that accordingly where a ward was not terminally ill the court might in appropriate circumstances, withhold consent to life-saving treatment.
2. That, where a child was not terminally ill, the court in determining where his best interests lay would (per 2 judges) take into account the pain and suffering to the child and assess its effect from his position were he able to make a sound judgement, so that where, viewed from such a standpoint, his acting solely on his behalf might properly choose a course of action which did not prevent his death. The 3rd judge preferred looking at the situation from the standpoint of the reasonable and responsible parent with his child's best interests at heart.
This child was born very prematurely at 27 weeks' gestation. He weighed only 1.1 kg at birth and was not breathing. He suffered prenatal brain damage and required immediate resuscitation by means of mechanical ventilation which caused the child considerable distress. He stopped breathing again 5 months later and was again placed on a ventilator.
The most optimistic prognosis suggested that he has a considerably shortened life expectancy, that he would become a serious spastic quadriplegic, probably without sight, speech or hearing, but that his only likely sound reaction was that of pain. There was a possibility that he might at any time suffer respiratory collapse requiring further reconciliation.
The Court was careful to point out that there was no question of the court approving a course aimed at termination of life or accelerating death even in the case of the most horrendous disability. The Court was only concerned with the circumstances in which steps should not be taken to prolong life.
Cases such as this one are extraordinarily difficult. However, in my view, to avoid paternalism and to respect the child's right to life, the child should be given the same treatment which would be given to a non-handicapped child unless it is inevitable that the child's death is imminent. Clearly Mr Justice Vincent's approach is preferable.
As already stated, the Natural Death Act 1983 formed the basis for the proposed model legislation included in the recent New South Wales Health Department's Discussion Paper.
The main provision, Section 4, stated:
"4. (1) A person of sound mind, and of or above the age of 18 years who desires not to be subjected to extraordinary measures in the event of his suffering from a terminal illness, may make a direction in the prescribed form.
(2) The direction must be witnessed by 2 witnesses.
(3) Where a person who is suffering from a terminal illness has made a direction under this section and the medical practitioner responsible for his treatment has notice of that direction, it shall be the duty of that medical practitioner to act in accordance with the direction unless there is reasonable ground to believe:-
(a) that the patient has revoked, or intended to revoke, the direction; or
(b) that the patient was not, at the time of giving the direction, capable of understanding the nature and consequences of the direction."
Section 4 also emphasised the doctor's duty to properly inform his patient of the forms of treatment available.
"'Extraordinary measures' were defined to mean medical or surgical measures that prolong life, or are intended to prolong life, by supplanting or maintaining the operation of bodily functions that are temporarily or permanently incapable of operation."
'Terminal illness' was defined as meaning "any illness, injury or degeneration of mental or physical faculties -
(a) Such that death would, if extraordinary measures were not undertaken, be imminent; and
(b) From which there is no reasonable prospect of a temporary or permanent recovery, even if extraordinary measures were undertaken".
Other provisions stated that the Act did not affect the right of anyone to refuse treatment (S 5(1)), nor did it affect the legal consequences (if any) of taking or refraining from taking measures (not being extraordinary measures) on a patient suffering a terminal illness whether or not he had made a direction under the Act nor taking or refraining from taking extraordinary measures on a patient who had not made a direction under the Act (S 5(2)).
The Act gave protection to doctors for decisions made in good faith and without negligence as to whether:
"(a) a patient is, or is not, suffering from a terminal illness;
(b) a patient revoked, or intended to revoke, a direction under this Act; or
(c) a patient was, or was not, at the time of giving a direction under the Act, capable of understanding the nature and consequences of the direction."
An important change to common law responsibility was made in Section 6 which provided that for "the purposes of South Australian law, the non-application of extraordinary measures to, or the withdrawal of extraordinary measures from, a person suffering from a terminal illness does not constitute a cause of death" (emphasis added).
However S 6(2) stated that Section 6 did not relieve a medical practitioner from the consequences of a negligent decision as to whether or not a person is suffering from a terminal illness.
Section 6(1) is not restricted to treatment of patients who have signed a direction under the Act. It could be widely interpreted to allow, for example, handicapped babies with blockages to the heart to die who would otherwise be saved by surgery.
The Northern Territory Parliament was not prepared to go this far in 1988. Its equivalent Section 6 restricted the ambit to cases where the patient had signed a direction under the Act.
A weakness in this legislation is that the direction can be made at a time many years before the patient suffers from a terminal illness. People change their minds. The Act makes no provision for this. It also makes no provision to review a direction suspected of being forged, fraudulently obtained, made under duress or mistakenly given.
Further, although South Australia and the Northern Territory Law entitle persons to use reasonable force to prevent suicide,(49) such actions are discouraged if the patient has signed a direction. For example, a person with early stages of low grade but incurable cancer who may also have a year or two to live may take an overdose of sleeping tablets and be taken to hospital for treatment.
If it was known that the patient had signed a direction under the Act, medical staff may fear disciplinary action once he has been revived since (1) he has an incurable cancer from which recovery cannot occur; (2) death is imminent from the overdose.
Indeed the legislation may impliedly repeal the suicide prevention laws. The definitions of terminal illness and extraordinary treatment are in my view too vague.
The South Australian Act has been heavily criticised in recent years, largely because very few people use it. Whilst the reaction of members of the Parliamentary Select Committee into the Law and Practice relating to Death and Dying has been to draft a new bill, the Consent to Medical Treatment and Palliative Care Bill 1992, which I will discuss below, another more preferable would be in my view to repeal the Natural Death Act and revert to common law.
The Natural Death Acts have been described as living will legislation in that they allow a person to refuse treatment generally in advance of an illness or disease.
The Medical Treatment Act is not "living will" legislation as a certificate under the Act must relate to a current condition, but it should be noted that the condition does not have to be terminal. The Act applies to all medical treatment (other than "palliative care"), however simple or effective, and to all medical conditions, whether or not reversible by such treatment.(50)
The Act was passed in 2 stages. The initial legislation which came into operation in September 1988 created the offence of medical trespass and provided for a patient under certain conditions to sign a refusal of treatment certificate.
The second stage was the passing of the Medical Treatment (Enduring Power of Attorney) Act 1990 which came into operation on 6 August 1990. Many of the provisions of this amending Act had been rejected during the 1988 debate in Parliament. The amending Act also addressed some of the criticisms made of the 1988 Act.
The Amending Act principally permits a patient to appoint an agent under an enduring power of attorney using a prescribed form, provided the enduring power of attorney is witnessed in accordance with the Act. This enduring power of attorney is not revoked by the person giving it becoming incapacitated or a protected person under the Public Trustee Act 1958 or a represented person under the Guardianship and Administration Board Act but may be revoked in other ways.(51)
The agent for all intents and purposes has the same power as the patient to refuse medical treatment generally or to refuse a particular kind of medical treatment for the condition suffered by the patient.(52)
The patient may validly sign a refusal of treatment certificate if a doctor and another person are satisfied of a number of conditions mainly concerning the necessity of informed consent. The patient has to be of sound mind and at least 18 years of age.(53) An enduring power of attorney may be suspended or revoked by the Guardianship and Administrative Board. Application for such actions may be made by the Public Advocate, a person with a special interest in the patient's affairs or an agent appointed under the power of attorney.(54)
If an enduring power of attorney is revoked or a guardianship order is revoked, any refusal of treatment certificate completed by the agent or guardian is also revoked. Suspension of an enduring power of attorney is also revoked. Suspension of an enduring power of attorney suspends any refusal of treatment certificate.(55)
The Act provides sanction against persons who have a financial interest in the patient's estate to obtain the execution of a certificate by the patient, by deception, fraud, mis-statement or undue influence. Such a person forfeits any interest under the will or otherwise.(56)
The Act provides for the cancellation or cessation of a certificate(57) and specifies that in court proceedings production of a refusal of treatment certification or written notice of cancellation of such a certificate provides proof of the fact of refusal or cancellation of such a refusal certificate.(58)
The most controversial section is Section 6 which creates the offence of medical trespass. Section 6 provides:
"A medical practitioner must not, knowing that a refusal of treatment certificate applies to a person, undertake or continue to undertake any medical treatment to which the certificate applies, being treatment for the condition in relation to which the certificate was given.
Penalty: 5 penalty counts."
This section would effectively punish a doctor who seeks to save human life.
Professor David Lanham examines whether the Act necessarily implies that the refusal of life sustaining treatment is not to be equated with attempted suicide. He states this is the overwhelming view at common law. But he considers that the hunger striker might be allowed to starve himself to death, on one view of the provisions of the Act. He refers to Lee J's holding in Schneidas that medical treatment includes forced feeding.
Section 3 of the Act provides that "'palliative care' includes:
(a) the provision of reasonable medical procedures for the relief of pain, suffering and discomfort; or
(b) the reasonable provision of food and water."
Professor Lanham asks: does (b) merely confirm that the reasonable provision of food and water come within the meaning of "reasonable medical procedures" in (a), or does (b) stand entirely independent both of (a) and of the ordinary meaning of palliative care, which he asserts involves alleviating the symptoms of a disease without curing it?
Professor Lanham concludes if the latter interpretation is correct, a patient will not be able to use the certificate procedure to prevent force-feeding and the matter will remain covered by the common law. On the former interpretation, however, the act of force-feeding, if done to save and cure rather than to alleviate pain and suffering will in principle be covered by the certificate procedure.(59)
Professor Lanham puts forward a second argument which would bring force-feeding to preserve life within the certificate procedure even if the wider of the two meanings of palliative care were accepted. It is the reasonable provision of food and water which amounts to palliative care. If force-feeding is unlawful in any given case it is presumably also unreasonable. If that is so, it falls outside the definition of palliative care but as it is still, albeit unreasonable, medical treatment, it falls within the scope of the certificate procedure and so will amount to medical trespass under Section 6.(60)
In my view it would be highly unlikely that a hunger striker could persuade any medical practitioner to carry out the requirements of Section 5 of the Act and then witness the hunger striker's signature.
More likely to arise than the hunger strike suicide attempt, is the situation where the medical condition which requires life saving treatment is brought about by an attempt to commit suicide.(61) The Re Kinney case discussed earlier is an example of this. Kinney had not signed a certificate under the Medical Treatment Act, although he was suffering from a terminal illness, leukaemia.
What would the situation have been had Kinney signed such a certificate? Although the threat to life was caused by the overdose of sleeping tablets, in my view the existence of a certificate would have made doctors less likely to intervene. Section 9 of the Act protects the doctors who in good faith and in reliance on a refusal of treatment certificate refuses to perform or continue medical treatment which he or she believes on reasonable grounds has been refused in accordance with the Act.
Section 6 punishes doctors for medical trespass.
Although the 1990 Amendment incorporated Section 4 (3) into the Act which states that the Act does not (a) affect the operation of Section 6B (2) or 463B of the Crimes Act or (b) limit the operation of any other law, these provisions which relate to aiding and abetting or assisting suicide (Section 6B Crimes Act) or using force to prevent suicide which it is reasonably believed a person is attempting (Section 463B Crimes Act) do not require a doctor to take any action. The doctor who does treat may still have to defend medical trespass or civil proceedings and even if he successfully raises a defence, which is not certain, he would suffer a trauma which when one considers he acted to save life, is bizarre.
The justification for the creation of the offence of medical trespass has been stated by bioethicist Nicholas Tonti-Filippini as follows:-
"Before the matter of the Bill arose there had been instances in this State in which the patient's common law right to refuse medical treatment proved very difficult and in some cases virtually impossible to uphold".(62)
Obviously patients should have autonomy and the fears raised to doctors by a more litigious community should not cause doctors to force unwanted treatment of their patients. However in my view this provision of the Act is draconian in punishing the doctor who sincerely wants to act in the best interests of his patient by treating the patient. In my view the distinction between refraining from or discontinuing treatment due to burdensomeness on the patient and deliberately killing the patient becomes more blurred under the Act.
The South Australian Parliamentary Select Committee into the Law and Practice Related to Death and Dying has incorporated this Bill in its Second Interim Report. The Bill covers a much wider area than either the Natural Death Act (SA) or the Medical Treatment Act (Vic).
Part 2 deals with Consent to Medical Treatment and commences in Division 1 by declaring that a person over 16 may consent to a medical procedure as validly and effectively as an adult.
Division 2 establishes medical powers of attorney and provides that a person over 16 may by medical power of attorney, appoint an agent over 18 with power to consent or to refuse to consent on his or her behalf to a medical procedure which by definition also includes surgery and dental procedures (Clause 5(1)).
A medical power of attorney must be in the prescribed form or in a form to similar effect and must be witnessed by an authorised witness, which definition includes justices of the peace and clergymen (Clause 5(2)).
A medical power of attorney authorises the medical agent subject to any conditions in the power of attorney, to consent or refuse to consent to a medical procedure if the person who grants the power is unable to make the decision on his own behalf but does not authorise the medical agent to refuse the normal provision of food, water and palliative care. "Palliative care" in the Bill means measures directed primarily at maintaining or improving the comfort of a patient who is, or would otherwise be, in pain or distress (Clause 5 (3)).
Clause 6 creates a criminal offence punishable by up to 10 years imprisonment for a person who by dishonesty or undue influence, induces another to execute a medical power of attorney.
Division 3 deals with Medical Treatment of Children and appears to restate the common law as interpreted in Gillick's case.
Division 4 deals with Emergency Medical Treatment. Unless a medical agent decides to the contrary, the Bill provides that a medical procedure may be lawfully carried out on a person in an emergency and the person is incapable of consenting and to the best of the doctor's knowledge, the patient has not previously refused to consent to the procedure (Clause 8(1)). In my view this merely restates the common law.
In the case of where emergency treatment is necessary for a child the parents' consent must be sought but if the parent refuses to consent, the doctor may still lawfully carry out the procedure if it is essential to the child's health and well being. Again in my view this restates the common law.
Part 3 of the Bill contains provisions concerning medical practice. If a doctor responsible for treatment or care of a patient or someone else assisting him incurs no civil or criminal liability for an act or omission made with the consent of the patient or medical agent, without consent but in accordance with an authority conferred by the Bill (obviously concerning emergency treatment) provided the doctor acts in good faith and without negligence and in accordance with prevailing standards of medical practice (Clause 9 (1)). This applies to all conditions.
Specific provision is made to protect doctors and assistants treating patients suffering from terminal illness where pain killers are used with consent, in good faith and without negligence and in accordance with prevailing standards of palliative care. "Terminal illness" is defined as meaning "an illness or condition that will result in death and from which there is no reasonable prospect of recovery."
The Act declares the doctor treating a terminally ill patient is under no duty to use extraordinary measures in treating the patient merely to prolong life in a moribund state without any real prospect of recovery (Clause 9 (3)). "Extraordinary measures" means medical procedures that supplant or maintain the operation of vital bodily functions that are temporarily or permanently incapable of independent operation. In my view this restates the common law.
Clause 10 provides that for the purpose of South Australian law the non-application of extraordinary measures to, or the withdrawal of extraordinary measures from, a person suffering from a terminal illness does not constitute a cause of death (Clause 10(1)), nor does the administration of pain killers to a person suffering terminal illness if done in good faith, without negligence and in accordance with prevailing standards of palliative care (Clause 10(2)).
This Bill and the Committee's Second Interim Report have been the subject of considerable public discussion and consultation in recent weeks. Space does not permit a detailed criticism in this paper.
It is likely that a "tighter" Bill will be forthcoming. A glaring omission at present is the unavailability of an appeal mechanism to clarify questionable appointments and actions. Also there is no requirement for the witness to explain the ramifications of the Bill.
In my view the current Bill will give the medical agent too much power which could even extend to him practicing euthanasia or assisted suicide and the Bill lacks the appeal structure of the Medical Treatment Act.
The Bill to its credit has no clause akin to medical trespass. It is reasonable to assume that this omission was deliberate. Also the medical agent is not limited to refusing treatment. He may also consent to treatment.
Before concluding, I seek to address what some supporters of medical treatment legislation consider to be dangers associated with not legislating but staying with the common law.
Some commentators have argued that unless statutory provisions are in place clearly establishing patient's rights to refuse treatment and to appoint agents with the power to refuse treatment on a patient's behalf, judges may interpret the common law so liberally, as they have with the abortions laws, that euthanasia will become widely available, making it virtually impossible for law enforcers to mount successful prosecutions.
Whilst this argument has some superficial attraction, in my view it ignores a number of significant factors which apply to euthanasia and do not apply to abortion.
Firstly, euthanasia comes under the homicide laws, which protect all born persons. The same liability attaches to the doctor who poisons a severely handicapped 7 day old baby; as it does to the jealous lover who stabs his rival; as it does the contract killer who shoots a police informer; as it does the armed robber who shoots a security guard; as it does to the beneficiary of a rich aunt who turns on the gas and seals off the vents while aunt is asleep; as it does the depressed husband who pitying his wife's suffering, suffocates her with a pillow. There are a multitude of different methods of deliberately or recklessly killing other human beings for a multitude of reasons and whilst the penalties imposed may widely vary from release on a bond to be of good behaviour or a specified period to imprisonment for the rest of your life, as was imposed on Sydney's infamous granny killer, the homicide laws have in my view been consistently interpreted.
It is conceded that the enforcement of the homicide laws leaves much to be desired in the area of severely handicapped infants, but this area is complicated by other factors which I have discussed elsewhere.
None of the modern statutes in Australia concerning medical treatment address this particular problem, or offer any protection to the severely handicapped new born. The only case that I am aware of where a superior court was called upon to examine what may have been criminal neglect was Mr Justice Vincent in 1986 in Re E referred to earlier and he ruled in a way protective of the right to life of the child. The tenuous protection shown handicapped new borns appears to reflect the views of a number of doctors who practice in that field who take it upon themselves to "play God" and decide whether the child's life is worth living or not. There is no easy solution to this problem which would require massive education and a major change of attitude.
As will be gathered by the reader, I believe that the common law is superior to any of the legislation so far enacted or proposed. Experience has shown in another area of law dealing with medical practice, namely abortion law that certificate provisions tent to discourage even punish whistle blowers who detect illegal acts. In less than a decade, 2 New Zealand paediatricians Dr Melvyn Wall in 1982 an Dr John McArthur in 1990 have been found guilty of professional misconduct for complaining publicly about abortions they detected which they believed were illegal. In each case certificates had been signed by authorised doctors under appropriate legislation. The facts of each case appeared to justify the complaints made by the doctors, but the New Zealand Court of Appeal had held that the Courts could only look behind a certificate where there is clear evidence of mala fides and then only on the application of the Attorney General.(63)
Doctors should not be penalised for trying to save lives - they should be praised and supported.
The common law recognises the autonomy of patients as well as the right of doctors to act in the best interests of their patients at times when objective calmness and expert medical knowledge are essential.
It is significant that the Voluntary Euthanasia Societies are strong supporters of medical treatment legislation. On the current evidence in my view the best protection against euthanasia is retention of the common law and increasing the availability and awareness of palliative care for the dying.
* Mr Greg Smith LLB is a Crown Prosecutor for the State of New South Wales and president of Right to Life (New South Wales) Inc.
1. Time constraints at the seminar meant that Mr Smith could only provide a summarised version of this paper on the day of the seminar.
2. Jenna Price, Economy a Good Contraception, The Sydney Morning Herald, 19 August, 1992.
3. Crimes Act (NSW), s547b; Crimes Act (Vic) s463b; Criminal Law Consolidation Act (SA) s13a(2); Crimes Act (ACT) s18.
4. Criminal Code (Qld) s266; Criminal Code (WA) s243.
5. Criminal Code (Tas) s46.
6. Criminal Code (NT) s169, 27(e).
7. Kevin Andrews, The Medical Treatment Act, 150 Med JA 31.
8. Re Jane (1988) 94 FLR 1.
9. R v Hallstrom; ex parte W (1980) 2 WLR 883 at 893.
10. Wilson v Pringle (1987) QB 237 at 252.
11. International Right to Life Federation Weekly Review, Vol.2, No.31, 31 July 1992.
12. In re F (Mental Patient: Sterilisation) (1989) 2 WLR 1025.
13. In re R (a minor) (Wardship: Consent to Treatment) 1992 Fam. 11; (1991) 3 WLR 592.
14. 1986 AC 112.
15. Anthony Dickey, The Limits of Gillick Explored, 66 ALJ 288 at 289.
16. Secretary, Department of Health and Community Services v JWB and SMB (1992) 66 ALJR 300.
17. 8 April 1983, Supreme Court of New South Wales (unreported).
18. ibid., pp3-4.
19. ibid., p4.
20. ibid., pp7-8.
21. Leigh v Gladstone and ors (1909) 26 TLR 139 (involving suffragettes).
Southwark London Borough Council v Williams (1971) 1 Ch 734 at 746.
22. Schneidas (supra) pp10-11.
23. ibid., pp11-12.
24. ibid., p13.
25. 1986 AC 112 at pp174 G - 175 B - per Lord Scarman and pp190 F - 191 A per Lord Bridge of Harwich. Also Lord Fraser of Tullybelton at 194 E - H held it unlikely that a doctor who intended to act in his patient's best interests when prescribing contraceptives for a girl under 16 was criminally liable.
26. Kinney pp5-6.
27. Press release and Discussion Paper dated 15 November, 1990.
28. The Sydney Morning Herald, 1 August, 1992.
29. N. Tonti-Filippini, "Chronic Ventilation: When Optimism Fades", St Vincent's Hospital Bioethics Centre paper, 14 October, 1989.
30. Glanville Williams, Letter to the Editor 1977 Crim LR 635. See also G.P. Fletcher, Prolonging Life (1966-67) 42 Wash L Rev 999; Ian Kennedy, Switching Off Life Support Machines, 1977 Crim LR 443 at 447.
31. Glanville Williams, Textbook of Criminal Law (second edition, 1983) at 279.
32. (1981) 1 WLR 690 at 697; see also R v Kinash (1982) Qd R 648.
33. Helen Beynon, Doctors as Murderers, 1989 Crim LR 17 at 23.
34. (1976) 355 A 2nd 647 at 664.
35. ibid. at 669.
36. International Right to Life Federation Weekly Review, 3 July, 1992, Vol.2, No.27.
37. 1957 Crim LR 365.
38. 1985 Crim LR 705.
39. Medico-Legal Journal, 58/2, p116.
40. Barber v Superior Court (1983) 147 Cal App (2D) 1006; 195 Cal Rptr 484. Discussed in Dr Robert Weir, (1989) Abating Treatment with Critically Ill Patients, Oxford University Press, New York, at page 165, footnote 17, after giving the citation for the Barber case, refers to an earlier case in which criminal charges were filled in Illinois against the parents and attending physician in a case of selective non-treatment with conjoined twin babies. These charges were dismissed at the preliminary hearing for lack of evidence. For more detailed discussion see Dr Robert Weir, (1984) Selective Non-Treatment of Handicapped Newborns, Oxford University Press, New York. pp95-97.
41. International Right to Life Weekly Review, Vol.2, No.34, 21 August, 1992.
42. Karin S.M. Clark, (1992) The Baby M Inquest - Some Legal Aspects of Treating Disabled Infants, Law Institute Journal, May, p395.
43. Hansard of the Legislative Assembly (Victoria), 7 April, 1992, speech by Mr Robert Clark MP; see also, Baby M Question in Parliament, News Weekly, 9 May, 1992.
44. Karin Clark, op. cit., p393.
45. ibid., p395.
46. 2 July, 1986, unreported; The Age, 3 July, 1986; Karin Clark, op. cit., p396.
47. ibid.
48. In re B (a Minor) (1981) 1 WLR 1421; In re C (a Minor) (1989) 2 WLR 240; and In re J (a minor) (1991) 2 WLR 140.
49. S 13A (2), Criminal Law Consolidation Act; S 169, 27 (e) Criminal Code (Northern Territory).
50. Karin Clark, The Medical Treatment Act 1988 - Safeguarding Patient Rights or Making Patient Welfare? 1989 Law Institute Journal 473 at 475.
51. S 5a (4), Medical Treatment Act 1988 (Victoria).
52. ibid., S 5b.
53. ibid., S 5.
54. ibid. S 5c - but "special interest" may be narrowly interpreted cf. Wall v Livingstone (1982) NZ LR 734 concerning certificates under New Zealand abortion legislation.
55. ibid., S 5d
56. ibid., S 5F.
57. ibid., S 7.
58. ibid., S 8.
59. David Lanham, (1990) The Right to Choose to Die with Dignity, 14 Criminal Law Journal 401 at 426-427.
60. ibid., p427.
61. ibid., p427.
62. Nicholas Tonti-Filippini, (1988) The Medical Treatment Bill and Catholic Teaching, St Vincent's Hospital Bioethics Centre Newsletter, Vol.6, No.1, May, p3.
63. See Wall v Livingstone (1982) 1 NZLR 734 and Dr McArthur Loses Appeal in Humanity, December 1990.
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