Report No. 196
Dyson vs. vs. AG (1911)(1) K B 410 (CA)
Sankey vs. Whitlam: (1978) 142, CLRI
Imperial Tobacco vs. AG: 1980(1) All ER 866 (HL)
R vs. Sloan: 1990(1) NZLR 474.
Accepting the jurisdiction of Court but with a discretion to use it sparingly is a better principle since there may be circumstances where it is clear that the criminal process is being used vexatiously and the criminal proceeding amounts to an abuse of process. The Court must be prepared then to say so and to step in and bring the vexatious proceeding to an end. At other times, as illustrated by the cases referred to, the Court can properly and usefully resolve a legal issue in advance of a criminal proceeding.
It is true that the above cases involve offences of a regulatory nature. Nevertheless, the offences have been properly regarded as 'crimes'. Nor is there any reason to draw a distinction between crimes of a regulatory kind and crimes which may involve an element of moral turpitude. Any such distinction was rejected by the High Court of Australia in Sankey vs. Whitlam (1978) 142 CLR. 1, referred to with approval in R vs. Sloan (1990) (1) NZLR 474 by Hardie Boys J.
It would be unsatisfactory to make the power of the Court depend upon so arbitrary and uncertain a test. Such matters are best left to be considered by the Court in the exercise of its jurisdiction.
In exercising a discretion in a case like the present, there are a number of matters which should be taken into account. Two important matters, may, however, require to be mentioned.
First is that a decision of the Court would tend to have the effect of usurping the function of the criminal Court. "In most cases, I agree, it would be totally inappropriate to make a declaration in the Court's civil jurisdiction which would pre-empt a decision of the Court in its criminal jurisdiction. In this case, however, the doctors are in an invidious position.
On the one hand, they have that duty to their patient and their professional responsibility to adhere to good medical practice; on the other hand, if they act in accordance with their conscience, they face the threat of criminal proceedings alleging that they are guilty of unlawful killing. This point outweighs the general importance of not intervening in a criminal proceeding in a manner which might displace or affect the exercise of the Court's criminal jurisdiction."
Nevertheless, a civil ruling on an issue which will fall for consideration in any criminal proceedings which are undertaken in respect of the same subject matter will not be binding on the Court in the exercise of its criminal jurisdiction. Lord Lane put it in this way in Imperial Tobacco Ltd. vs. AG: 1980(1) All ER 866 (HL):
"The criminal law would not be bound by the decision. In practical terms, it would simply have the inevitable effect of prejudicing the criminal trial one way or another."
Viscount Dilhorne also spoke of the use which might be made at the criminal trial of a declaration in a civil Court that no crime had been committed. It is clear from his Lordship's remarks that he used the word 'used' in the sense of 'misuse' and considered that the integrity of the criminal proceedings would be adversely affected.
The fact that a declaratory order of the Court would not be binding in any criminal proceeding must be a telling factor against making any order at all. Nor is it appropriate that a ruling of the Court on its civil jurisdiction should be available to be used or misused, by the combatants at the criminal trial. But, these unsatisfactory features are again outweighed by the desirability of providing the doctors in the circumstances of this case, with a ruling as to the lawfulness of their actions.
The second factor which relates to the exercise of the Court's discretion is the fact that "the Court would be effectively making a declaration relating to future conduct. The facts before the Court now need not necessary be the facts which exist at the time the doctors withdraw the ventilator-support system. The imprudence of making a declaration on the basis of future acts is well-established.
Yet, in this case, it is justified. For one thing, the facts are settled. Mr. L is not going to recover, nor will his condition even improve. Moreover, it is expected that if there is a material change in the facts, such as Mrs. L changing her mind or the ethics Committee receiving their earlier endorsement, the doctors would act responsibly, any declaration can be worded in such a way as to overcome the difficulty. Whatever be the form, the doctors are entitled to an indication from the Court as to whether or not their action will be lawful."
The learned Judge then referred to 'sanctity of life' as a deep-rooted value imminent in our society and its presentation as a fundamental humanitarian precept. He then referred to section 8 of the N.Z. Bill of Rights Act, 1990 which states:
"Section 8: Right not to be deprived of life: No one shall be deprived of life except on such grounds as are established by law and are consistent with the principles of fundamental justice."
The learned Judge observed that that was not to say that the sanctity of life represented an absolute value. Few, if any, value could be stated in absolute terms. The qualification in section 8 itself conferred that to be the case. It was also illustrated by the fact that a person might refuse medical treatment. Section 11 of the N.Z. Bill of Rights Act, 1990 states: "Everyone has the right to refuse to undergo any medical treatment".
It has been held also that where one cannot accord with the view that this right enabled a patient, properly informed, to require life-support systems to be discontinued. In Nancy B vs. Hote.- Dieu de Quebec (1992) 86 DLR (4 th) 385, the Quebec Supreme Court was faced with the same problem. The patient suffered from Guillan-Barre syndrome and was incapable of movement. She could breathe only with the aid of a respirator. But her intellectual capacity and mental competence were unaffected.
Her condition was diagnosed as 'irreversible and incurable' and she wanted it to be brought to an end. She commenced an action seeking injunction against the hospital and her physician requiring them to withdraw the respirator. The injunction was granted. It was held that the use of respirator to sustain 'life' was medical treatment but that the discontinuance of that treatment at the patient's request would not constitute a criminal act. Rather, it "allowed nature to take its course".
Nancy B also highlights another set of values which are central to our concept of life; values of human dignity and personal privacy. See also Matter of Nancy Ellen Jobes (1987) 529 A 2d 434.
The problem arises when life passes into death but obscurely. It is a problem made acute by the enormous advances in technology and medical science in recent decades. With the use of sophisticated life support systems, life may be perpetuated well beyond the reach of the natural disease. The process of living can become the process of dying so that it is unclear whether life is being sustained or death being deferred.
This is the plight of the irreversibly doomed patient. Maintained by mechanical means they exert suspended in a state of moribund inanimation. Whether a body devoid of a mind or as in the case of Mr. L, a brain destitute of a body, does not matter in any sensible way.
In their chronic and persistent vegetative condition, they lack selfawareness or awareness of the surroundings in any cognitive sense. They are the 'living dead'. Whether, in such circumstances, or in this particular case, it is fairer to say that life-support system is being used to sustain life or being used to defer death is at the heart of the question.
The learned Judge then discussed the issue under the heading 'The living dead'. Over time, the medical community's perception of what constitutes 'death' has changed. The general community's principles has also changed but has lagged somewhat behind that of the doctor's. Originally, it was thought that the absence of the 'vital functions', (absence of) a heart beat and breathing, signified death. That is not the view doctors share today.
With the advances in technology and medical skills which have occurred, the medical profession has rejected the notion that death is to be equated with the cessation of a person's heartbeat. In open heart surgery, for example, the patient's heart is temporarily stopped, but it is not thought that he or she has died. Instead, the medical community has preferred the concept of what is called 'brain death'.
In England, the Conference of Medical Colleges and their Faculties of the UK has resolved that, when irreversible brain damage is diagnosed and it is established by tests that none of the vital centres in the brain system are still functioning, the patient is to be accounted dead: (1979)(1) British Medical Journal p 332). Though this definition is not formally adopted in New Zealand, it is widely accepted throughout the medical profession as being a more accurate indication as to when death occurs.
'Brain Death' according to Ian Kennedy is 'the state which has traditionally been regarded as death in a human being is reached when the brain, including the brain stem, is destroyed. A person will not breathe, nor will his heart beat, without a functioning brain-stem; and if this is destroyed, he will never recover the ability to do so, since, once destroyed, brain cells do not regenerate' ('Switching off Life Support Machines: Legal Implications', 'Treat me Right') (1988) pp 351-352).
Breathing and heartbeat, however, can be mechanically induced. This is, of course, what occurs when an artificial respirator is applied. Breathing and heartbeat are maintained, and may be maintained indefinitely, even though the person is medically dead. In such a case, the ventilator is 'merely ventilating a corpse' (ibid p 352).
So far as Mr. L is concerned, his upper brain is damaged, he is alive but the nerve complex which connects his brain to his body is totally destroyed and cannot be regenerated. Spontaneous breathing and heartbeat are irreversibly lost as if he were brain-stem dead. Breathing and heartbeats, the outward manifestations of life, are also mechanically induced. The difference between the two cases is a matter of medical description, but both descriptions are, perhaps, equally apt to describe the 'living dead'.
Mr. L is 'living dead' but may not be 'brain-stem dead'.