32 / 462
GAZETTE
JAN/FEB 1993 '
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.
3. A doctor had to comply with a
patient's instructions as to
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
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 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)
10