Melbourne Law School - Research Publications

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Start date: 2005 × End date: 2005 × Author: Skene, Loane ×

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    The Schiavo and Korp cases: Conceptualising end-of-life decision making
    SKENE, LOANE (Law Book Co., 2005)
    An incompetent, terminally ill patient can be viewed in two ways – as a person who is dying, when futile, life-prolonging treatment can be lawfully withdrawn; or a person with a disability, for whom a guardian must be appointed to decide about treatment. Terri Schiavo’s husband took the first view and her parents the second. Maria Korp was regarded as dying when treatment was withdrawn. The difference in conceptualising a patient’s situation is critical. Where a patient is dying, treatment can be lawfully withdrawn whatever the view of the relatives; they cannot require treatment to be continued. Where a patient has a disability and a surrogate decision maker is appointed, the focus is on what the patient would have wanted in such circumstances, so that the surrogate can act in accordance with the patient’s wishes. That deflects attention from the fundamental legal principle that whatever a patient or the relatives want, they are not legally entitled to demand treatment that doctors consider futile in the circumstances.
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    Effects of tort law reform on medical liability
    SKENE, LOANE ; LUNTZ, HAROLD (Thomson, 2005)
    In the period 2001-2004, legislation has been passed in all Australian jurisdictions to effect “tort law reform”. This article outlines some of these changes, focusing particularly on the amendments to the Wrongs Act 1958 (Vic), though it also draws attention to corresponding changes in other jurisdictions. The new legislation creates new immunities from liability; limits recovery for psychiatric injury; reintroduces in modified form the Bolam test of professional negligence; replaces the “not far-fetched or fanciful” test of foreseeability with one requiring that the risk be “not insignificant”; extends the scope of the traditional defence of voluntary assumption of risk; and provides caps, thresholds and a higher discount rate in relation to damages. The impact that these changes may have on the liability of health professionals is considered.