Hypotheticals by Manny Wood. Published in the Coffs Coast Advocate on 30 June 2018.
Paul and Jane were married a few years ago.
When the couple are visiting their friend’s farm, Jane is tragically involved in an accident involving a quad bike. Jane is 30 years old at the time.
When Jane arrives at a Sydney hospital, she is unresponsive and sedated. She is diagnosed as suffering from a severe brain injury and the surgeons, neurosurgeons and orthopaedic surgeons agree that Jane is in fact brain dead.
A CT angiogram reveals that there is no evidence of any blood flow to the brain.
The doctors inform Paul that they intend to turn off the life-support machine.
Paul asks the doctors; “how can she be dead if she is still breathing, if her organs still work, if her blood is pumping, what if she wakes up?”
Paul asks for a copy of Jane’s medical reports and is informed that it will take up to 30 days for them to be provided.
Paul files an urgent summons in the Supreme Court seeking an injunction restraining the doctors from ceasing necessary medical assistance, care, treatment or testing for his young wife.
The judge conducts the hearing on the basis that if Jane was brain dead under the Human Tissue Act 1983, Paul’s application would be futile.
Under the Act, a person has died when an “irreversible cessation of all function of the person’s brain” has occurred.
The court hears evidence that although, in these circumstances, the legal requirement is for two doctors to declare a person dead, there were six doctors in this case.
Ultimately, the court reaches the “regrettable conclusion” that Jane is deceased and Paul’s summons is dismissed.
If you would like Manny to address a particular legal issue, send your request to manny.wood@ticliblaxland.com.au or call him on (02) 6648 7487.
