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CLWR 38 (2009) 295

Advance Directives Refusing Treatment as an Expression of Autonomy: Do the Courts Practise What They Preach?
Lindy Willmott

The principle of autonomy is at the heart of the right of a competent individual to make an advance directive that refuses life-sustaining medical treatment, and to have that directive complied with by medical professionals. That right is protected by both the common law and, to an extent, by legislation that has been enacted in the United Kingdom and many jurisdictions in Australia. The courts have a critical role in protecting that autonomy, both in those jurisdictions in which the common law continues to operate and in those jurisdictions which are now governed by statute, and in which judicial determinations will need to be made about legislative provisions. The problem explored in this paper is that while the judiciary espouses the importance of autonomy in its judgments, that rhetoric is frequently not reflected in the decisions that are reached. In the United Kingdom and Australia, there is a relatively small number of decisions that consider the validity and applicability of advance directives that refuse life-sustaining medical treatment. This paper critically evaluates all of the publicly available decisions and concludes that there is cause for concern. In some cases, there has been an unprincipled evolution of common law principles, while in others there has been inappropriate adjudication through operational irregularities or failure to apply correct legal principles. Further, some decisions appear to be based on a strained interpretation of the facts of the case. The apparent reluctance of some members of the judiciary to give effect to advance directives that refuse treatment is also evidenced by the language used in the judgments. While the focus of this paper is on common law decisions, reference will also be made to legislation and the extent to which it has addressed some of the problems identified in this paper.

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CLWR 38 (2009) 342

Extending Time Limits in Sexual Abuse Cases: A Critical Comparative Evaluation
Anthony Gray

An issue common to many common law jurisdictions is the question of civil claims based on alleged past sexual abuse brought a long time after the events. Many survivors of such abuse only make the allegations public, if ever, many years after the abuse took place. Each jurisdiction has time limits within which civil claims must be brought. There are generally sound policy reasons for such limits: to discourage lax attempts to enforce or vindicate claims; to respect the right of the defendant to not have stale claims brought; and to allow for a fair trial given the likelihood that the quality of evidence will deteriorate over time. However, it is difficult to impose such regimes on survivors of sexual abuse who come forward much later. The paper explores psychological literature that helps to explain why it is that such victims may only come forward, if ever, many years after the events. It is submitted that legal systems generally need to take a much more flexible approach to extension of time claims in such contexts, and avoid judgments as to when a victim 'should have' brought their claim. It will be concluded that the approach of several Canadian provinces, removing the limitation period in such cases, is the preferred approach.

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Links to other issues

Volume 30 (2001) :   1   2   3   4

Volume 31 (2002) :   1   2   3   4

Volume 32 (2003) :   1   2   3   4

Volume 33 (2004) :   1   2   3   4

Volume 34 (2005) :   1   2   3   4

Volume 35 (2006) :   1   2   3   4

Volume 36 (2007) :   1   2   3   4

Volume 37 (2008) :   1   2   3   4

Volume 38 (2009) :   1   2   3   4

Volume 39 (2010) :   1   2   3

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