Page 3514 - Week 12 - Wednesday, 12 October 1994
Next page . . . . Previous page . . . . Speeches . . . . Contents . . . . Debates(HTML) . . . . PDF . . . .
It has been said that by "intention" is meant a purpose or decision to bring something about (Hyam [1975] A.C. 55 at 74). It has also been held, in the context of the terminally ill patient, that if the first purpose of medicine - the restoration of health - cannot be achieved, the doctor is entitled to do all that is proper and necessary to relieve pain and suffering even if the measures he takes might incidentally shorten life by hours or even longer (R v. Adams [1957] Crim. L.R. 365, per Devlin J.).
In such a case, it would seem the requisite fault element for murder is not present and that the intention of the doctor is not to bring about the death of the patient but to relieve pain and suffering ...
The words "Notwithstanding the provisions of any other law of the Territory" indicate an unambiguous and unqualified intention to override the existing law, including the criminal law. The right conferred by section 22(1), as proposed to be amended by the Amendments, is qualified only by the fact that it is conferred "to the maximum extent which is reasonable in the circumstances". Thus the law of homicide is only preserved where relief from pain and suffering is granted to an unreasonable extent. What is "unreasonable" would ultimately depend upon the personal view of the judge or the particular jury with, presumably, little guidance from the judge.
... ... ...
In Opera House Investment Pty Ltd v. Devon Buildings Pty Ltd (1936) 55 CLR 110, 116, Latham CJ noted:
The word "reasonable" has often been declared to mean "reasonable in all the circumstances of the case". The real question, in my opinion, is to determine what circumstances are relevant. In determining this question regard must be paid to the nature of the transaction.
In the context of the criminal law the word "reasonable" has caused difficulties, and in relation to "proof beyond reasonable doubt" many judges now direct that the words simply mean what they say.
Relevant circumstances for determining whether the maximum level of relief from pain and suffering that is reasonable has been provided might include whether the provision of more relief might, in relation to the pain and suffering being undergone by the patient, be prohibitively expensive or difficult to administer or produce even less desired side effects. More obviously, Clause 22(2) indicates that "the patient's account of his or her level of pain and suffering" is a "relevant circumstance".
Next page . . . . Previous page . . . . Speeches . . . . Contents . . . . Debates(HTML) . . . . PDF . . . .