Page 3504 - Week 12 - Wednesday, 12 October 1994
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Mr Moore: Even for a blood transfusion you have the right to say no.
MR CONNOLLY: Even for a blood transfusion, a very simple procedure. It has been the common law in England; it has been the common law in Australia; it has been the common law in Canada; it has been the common law in the United States, to the extent to which the United States doctrines are valuable. But how can a doctor prove that what he did was correct? How can a doctor, if he is later sued for negligence, prove what he was doing? While the patient has the fundamental right to say no, it is also fundamental that the doctor is obliged to use all his or her skill to provide the best treatment to a person. The doctor is in a potential conflict. The doctor is legally obliged to follow the patient's wishes.
Cases have shown that, if a doctor says to a Jehovah's Witness, "I am going to save your life, despite what you say, and give you a blood transfusion", and indeed does save the life of a person who otherwise would have died, that doctor will be sued and will lose because they trespassed. They committed a tort on the person by not following their direction. If the doctor obeys the direction, there is always the risk that relatives may later sue the doctor and say, "You were negligent in not exercising your utmost skill and providing the blood transfusion". The doctor would say, "But I was obeying the wishes of the person". How do you prove that? What is the mechanism for proving that? What proof is necessary? What we are trying to do here is effectively to codify what has long been the common law and provide a workable code that makes that very difficult decision for doctors easier to apply.
It would be reasonable to have debates here about what should be the form of proof, what proof should be required, whether we need one witness or two witnesses and whether we need two doctors or one doctor and one other health professional. It is quite proper to debate all of those issues of detail in the detail stage, but Mr Kaine continues to say that fundamentally he is opposed to this measure because this is a dangerous change in the law which is going to allow doctors to kill people. "This is euthanasia", say Mr Kaine and propagandists around the town who are opposing this legislation. I have to say that it is not. That is a fundamental misconception of what the Bill and the common law do.
It seems from the interjections that Mr Kaine acknowledges and accepts that this has always been the law. He is saying, "How does this improve it in detail?". That would be a legitimate point to make, Mr Kaine, if you were focusing on improving the detail of the legislation and making it more workable; but, as you have said from day one, you are opposed in principle to the legislation. I cannot understand this, when you must acknowledge that this has always been the common law and must acknowledge the Jehovah's Witness example of the blood transfusion. It is perfectly lawful for a Jehovah's Witness to say to the doctor, "No, I will not have a blood transfusion", and it is perfectly proper for the doctor, knowing that the person will die, perhaps even within minutes, if they are not given a blood transfusion, to say, "I respect your wishes and I will allow you to die". You must accept that, because that has been the case for many years - for centuries, to the extent that we can trace back the common law of trespass.
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