The Gazette 1993

GAZETTE

JAN/FEB 1993 '

in respect of the above principles are set out in the judgment.) Sir Thomas Bingham, Master of the Rolls, considered that if Mr. Bland had given instructions that he should not be artificially fed or treated with antibiotics if he should develop into a persistent vegetative state, his doctors would not act unlawfully in complying with those instructions but would act unlawfully if they did not comply, even though the patient's death would inevitably follow. If Mr. Bland were a child and a ward of court, the Master of the Rolls stated that the court would decide what were his best interests, having regard to the views of his parents but without treating them as conclusive. The court might conclude the issue in the child's best interest that life-saving measures be withheld if of opinion that the life thereby prolonged would be one of intolerable pain and deprivation. The Court of Appeal agreed with the ruling of the President of the Family Division that in cases of the present kind, application should be made to the court to obtain its sanction for the course proposed. The Court considered it a wise ruling directed to the protection of patients and doctors and to the reassurance of patients' families and the public. The court held that practice should be followed. The writer submits that each case is unique; each case must be considered on its merits. There is merit in seeking the approval of the court in these cases before taking appropriate action. This would act as a safeguard and for the reassurance of the public. Some may aregue that it is not for the courts to license homicide. Some may argue that if the person is already dead, the court has no jurisdiction. The writer recalls the words of Sir Stephen Brown, President of the Family Division (England and Wales) in the Bland case, "His spirit has left him and all that remains is the shell of his body." Doctors and members of the family may have a

difficult task in certain circumstances in determining when the spirit leaves the body. In practical terms, in this imperfect situation, someone must decide. Let it be the judge.

The consensus of medical opinion was that there was no hope of improvement or recovery. In his judgment, the Master of the Rolls said that the case was not about euthanasia, if by that was meant the taking of positive action to cause death. It was not about putting down the old and infirm, the mentally defective or the physically imperfect. It had nothing to do with the eugenic practices associated with fascist Germany. The issue before the court was whether artificial feeding and antibiotic drugs might lawfully be held from an insensate patient with no hope of recovery when it was known that if that were done the patient would shortly die. The Master of the Rolls referred to the following principles which were accepted by both parties: 1. A profound respect for the sanctity of human life was embedded in our law and moral philosophy. 2. It was a civil wrong, and might be a crime, to impose medical treatment on a conscious adult of sound mind without his or her consent. treatment to be given or withheld in certain circumstances, whether such instructions were rational or not. That principle applied even if by the time the circumstances obtained the patient was unconscious or of unsound mind. 4. Where an adult patient was mentally incapable of giving his consent, no one including the court could consent on his behalf. Treatment could lawfully be provided by a doctor where it was in the patient's best interests. 5. Where the patient was a child and a ward of court, the court would itself decide, with appropriate regard to medical opinion, whether treatment was in the patient's best interests. (Citations 3. A doctor had to comply with a patient's instructions as to

The Transmission of Documents by Fax

In ICDS Recruitment Consultants Ltd -v- Liam Gillespie (written judgment of November 10, 1992) Judge McMenamin of the District Court considered, inter alia, the significance of the transmission of documents by fax.

Judge Liam McMenamin

The construction of certain documents which were allegedly sent by fax were at issue in the case. The documents included certain contractual terms and conditions. The plaintiff produced in court the fax transmission report showing the transmission of five pages with the notation " O K " thereon which indicates to the sender that the documents had been transmitted. The defendant denied that he had received the contractual terms and conditions involved. Judge McMenamin stated that the transmission of documents by fax was one of the great technological advantages of this age, but as usual the law was slow to catch up. He continued: (Continued overleaf)

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