Legal problems with medical advances

Press, 14 May 1981, Page 23

Legal problems with medical advances

Rapid advances in medical technology threaten to outstrip the legal profession’s capacity to develop laws to deal with the acute moral and legal problems presented, said the chairman of the Australian Law Reform Commission, Mr Justice Kirby, in Wellington. “Many puzzling, indeed intractable, medico-legal problems lie ahead. They raise the gravest moral issues that "ill require all the wisdom "hich our two professions can offer to society and its lawmakers,” his Honour told u? c , l ? rs and lawyers at the Wellington Medico-Legal Society. His Honour said that medical technology posed many of today’s most pressing moral questions such as abortion, euthanasia, artificial insemination and test tube babies, genetic engin--eering and medical privacy. “Medical knowledge is advancing and changing with such rapidity that particular specific criteria or equipment embedded in a statute may well become outmoded or obsolete, yet remain legally compulsory.” His Honour said that recent controversy in Britain over the method of determining “brain death” for prospective transplant donors, illustrated the importance of lawyers and doctors having a dear understanding of each other's professional practices.

The Law Reform Commis-

sion adopted a legal definition of death which accepted the concept of “brain death.” but because the proposal was preceded by consultations between the two professions and widespread public debate, the Australian public generally accepted it, he said. His Honour said that the passionate and widespread debate on euthanasia in Australia led to the establishment of a Bio-Ethics Research Centre at Monash University. “There is a clear line between active euthanasia — the deliberate termination of life with the concurrence of society, generally to avoid pointless suffering — and passive euthanasia by which people are allowed to die naturally without intrusive medical treatment."

“But the problems raised by this debate merge into the abortion debate when we face the dilemma posed by the birth of a child monstrously deformed,” he said. "Specifically, it is to address the question of whether the distinction between knowingly allowing a patient to die, and positively helping in the process, is one that is and can be preserved in medical ethics and law.” The liveliest debate between the legal and medical professions in Australia had centred on laws for protection for privacy which stretched beyond doctor-pa-tient confidentiality.

His Honour said that laws would have to cover growing powers of officialdom to search and seize medical documents, intrusive business practices, modern suveillance methods and the increase in total data profiles on individuals which formed the basis of important business and government decisions.

“Nobody claims that privacy is an absolute value. It is relative to other competing social claims,” he said.

The Australian Law Reform Commission showed the public that the law’s protection was feeble and new guardians were necessary to protect against erosion of privacy, said His Honour. “I suspect that in New Zealand you will need to turn, in due course, to the same debates.”

Parliament, the courts and medical congresses rarely provided a suitable forum to gather expertise from both professions and widespread community participation necessary to provide longterm solutions to these moral and legal problems, he said.

“It is a matter of satisfaction to me that the Australian Law Reform Commission in some of its tasks has been able to translate the splendid idea of the medicolegal society into a practical catalyst for detailed research, widespread consultation, and then legislative action.”