Journal of law and medicine
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This article is concerned with the legal right of health service providers to decide whether to provide life-prolonging treatment to patients. In particular, an examination of recent decisions by the English Court of Appeal in R (Burke) v General Medical Council (Official Solicitor and Others Intervening) [2005] EWCA Civ 1003 and the European Court of Human Rights in Burke v United Kingdom (unreported, ECHR, No 19807/06, 11 July 2006) is provided. An analysis of Australian case law is undertaken together with a consideration of the limits of a patient's legal right of autonomy in relation to choosing life-prolonging medical treatment; the basis upon which such treatment can be legally withdrawn or withheld from an incompetent patient against the patient's earlier expressed wishes that it should be continued or initiated; the concept in ethics and law of a patient's best interests; and the role of courts in adjudicating disputes about the continuation of treatment in light of the recent decisions.
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This analysis traces the origins and evolution of the doctrine of surrogate or substituted judgment, especially its application to medical treatment, including non-therapeutic sterilisation, decisions regarding life and death choices, and more recently, removal of sperm or eggs from incompetent, dying or dead males and females. It argues that the doctrine, which has been acknowledged to be a legal fiction, has an effect of devolving legal and moral responsibility for life and death choices, as well as non-consensual, non-beneficial intrusive procedures, from the competent decision-makers to the incompetent patient. It focuses on the subjective nature of the substituted judgment standard; the problematic nature of evidence propounded to establish the putative choices of the incompetent person; lack of transparency relating to the conflict of interest in the process of substituted judgment decision-making; and the absence of voluntariness, which is an essential element of a valid consent.
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The Australian High Court recently found that the common law could allow parents to claim tortious damages when medical negligence was proven to have led to the birth of an unplanned, but healthy, baby (Cattanach v Melchior (2003) 215 CLR 1). In Harriton v Stephens (2006) 80 ALJR 791; [2006] HCA 15 and Waller v James; Waller v Hoolahan (2006) 80 ALJR 846; [2006] HCA 16 the High Court in a six-to-one decision (Kirby J dissenting) decided that no such claim could be made by a child when medical negligence in failing to order an in utero genetic test caused the child severe disability. In an era when almost all pregnancies will soon require patented fetal genetic tests as part of the professional standard of care, the High Court, by barring so-called "wrongful life" (better termed "wrongful suffering") claims, may have created a partial immunity from suit for their corporate manufacturers and the doctors who administer them. What lessons can be learnt from this case about how the Australian High Court is, or should be, approaching medical negligence cases and its role as guardian of the Australian common law?
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Medico-legal autopsies can be directed by coroners. However, in a number of jurisdictions family members can lodge objections with coroners against such procedures taking place. ⋯ Reviewing recent Victorian developments, they emphasise the public interest in autopsies which reveal medical causes of death. They identify the ongoing importance of coroners being able to exercise their statutory function to undertake death investigations effectively and to make informed recommendations to reduce the incidence of avoidable deaths.