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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)

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