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Report No. 196

Chapter VI

Legal Position in Canada, Australia, New Zealand and South Africa

In this chapter, we shall refer to the case law and connected statutes on the subject of withholding or withdrawing medical treatment to terminally ill patients in Canada, Australia, New Zealand and South Africa.


(1) Mallette vs. Schulman: (1990) 72 O.R. (2d) 417(CA): 1991(2)Med LR. 162.

In this case, a 57 years old woman who was seriously injured in a car accident was taken to the hospital and she was unconscious. A nurse discovered in the woman's handbag, a card signed by the woman identifying her as a Jehovah's Witness and requesting that no bloodtransfusions be given to her under any circumstances, that she fully realized the implications of that position but did not object to the case of non-blood alternatives.

The doctor was informed of the contents of the card but he personally administered blood transfusion to the woman as he was of the opinion that it was necessary to replace the blood that was lost and her life had to be saved. The woman made 'a very good recovery from her injuries'. She was discharged from hospital after 6 weeks. She then sued the doctor for negligence, assault, battery and religious discrimination.

The trial judge Donnelly J accepted the plea of battery only and awarded damages of $20,000. This was affirmed by the Court of Appeal. The case demonstrates that doctors must respect their patient's wishes provided that the patients were in a fit state to make it plain or indicate in advance as to what treatment they do not want. Doctors cannot substitute their decision from a validly made decision of the patient.

Medical Treatment to Terminally Ill Patients (Protection of Patients and Medical Practitioners) Back

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