Report No. 196
Auckland Area Health Board vs. Attorney General, 1993(1) NZLR 235 (13.8.92) (Thomas J)
This is one of the best judgments on the subject and received praise from the House of Lords in Airedale.
A doctor of the ICU of Auckland Hospital made an application, along with the Auckland Area Health Board, for a declaration clarifying whether, in law, they would be guilty of culpable homicide under ss 151(1) or 164 of the Crimes Act, 1961, if they were to withdraw the ventilatory support system which maintained the breathing and heartbeat of a patient with an extreme case of Guillian-Barre Syndrome. The disease affected the nervous system destroying the conductivity of the nerves between the brain and the body. The result was to leave the brain, though still living, entirely disengaged from the body.
The patient survived in a state of 'living death', totally unable to move or communicate and there was no prospect of recovery. However, because the brain, though damaged, was not dead, the patient was not medically 'brain-stem dead' as per the medical definition of 'death. The patient existed in that condition for 12 months. Eight specialists were unanimous that the ventilatory support could not be medically justified. In that approach, the medical team had the informed concurrence of the patient's family and the approval of the hospital ethical committee. If the life support system was withdrawn, death would be instantaneous.
The issue before the Court was whether in the circumstances, the doctors' action in withdrawing the artificial ventilatory-support system from Mr. L would make them guilty of culpable homicide. As part of the issue, the Court had also to consider whether a doctor was obliged to continue treatment which had no therapeutic benefit. The Court had also to determine a threshold issue as to the appropriate involvement of the Attorney-General.
Thomas J held that, as the proceeding raised matters of general public importance and the relief sought, if granted, would impinge upon prosecutorial discretion and prerogatives of the Crown, leave for the Attorney General to be heard as intervener be granted. (Adams vs. Adams: 1970(3) All ER 572 applied)
It was also held that the Court had jurisdiction to grant a declaratory relief even though the declaration related to a matter which could be the subject of criminal proceedings. Such jurisdiction should be sparingly exercised. Any civil ruling on an issue which fell for consideration in any criminal proceedings undertaken in respect of the same subject-matter would not be binding on the Court in the exercise of its criminal jurisdiction.
Any unsatisfactory features relating to the making of a declaratory order were outweighed by the desirability of providing the doctors in the circumstances of the case with a ruling as to the lawfulness of their action. Any declaration could be worded in such a way as to overcome the difficulty of the Court being asked to make a declaration relating to future conduct.