Harriton v Stephens An action for wrongful life ; an opportunity for teaching the law in context Meredith Blake UWA Law School
What is this about? An ethical question? A political question? A religious question? A question about modern medicine? Is this about human rights? For example the right not to be discriminated against? Or is it about the right to be compensated for a wrong which has (arguably) caused immense suffering and expense? 2
A civil case heard in the HCA Distinguish between civil actions, criminal prosecutions and public law processes; Civil actions are about redressing wrongs between private parties, and mostly involve claims for compensation; Criminal law is concerned with State prosecutions of individual(s) who are alleged to have infringed the criminal law (therefore more about deterrence (retribution? rehabilitation?); Public law processes seek to keep the process honest and are therefore aimed at reviewing action or inaction on the part of public bodies, as well as the constitutionality of legislation. 3
Who? The plaintiff Alexia Harrington; The defendant Dr Paul Stephens, a general practitioner; Heard at the same time as Waller v Hoolahan [2006] HCA 16 (alleged negligence in failure to carry out genetic testing) 4
Why? Alexia s mother consulted Dr S after suffering a fever and rash; She told Dr S she thought she was pregnant; Dr S accurately informed the plaintiff s mother that she was pregnant; He inaccurately informed her that she was not suffering from rubella; No further testing was undertaken 5
Why? Alexia was born profoundly, incurably and tragically disabled as a result of the rubella infection; She sought compensation for the damage she alleged she had suffered as a result of Dr Stephens advice; 6
How? AH sought to argue that the doctor owed her a duty of care to diagnose the fact that her mother was suffering from rubella and therefore give advice that AH was likely to be born with significant disabilities; AH argued that if this advice had have been given her mother would have terminated the pregnancy; Therefore AH s argument was that but for the defendant s negligence she would not have been born 7
What is this in legal terms? A common law action in negligence; Remember Donoghue v Stevenson?; A civil action involving proof by the plaintiff that: He/she was owed a duty by the defendant; That this was breached; That this caused legally cognisable damage Only once the liability components are satisfied, does the assessment of damages process take place 8
What is this in legal terms? Typically actions which raise legal, social, ethical and economic policy issues are dealt with at the duty stage; It operates to filter out the too hard cases; A cop out by the courts? There is nothing harder for the law than to confront issues concerning the birth and death of a human being and its role in this context; Re A [2001 UKCA], Bland [1993, HL] 9
Procedural History Trial at first instance heard in the Supreme Court of NSW action by AH dismissed; AH appealed to the NSWCA dismissed 2/1 (Spigelman CJ, Ipp JA, Mason P in dissent) High Court of Australia 6/1 dismissed the appeal Crennan J (with Gleeson CJ, Gummow, Heydon JJ), Callinan abd Hayne JJ concurring; Kirby J in dissent 10
In the HCA legalism versus activism? Crennan J; She found that Dr S did not owe AH a duty of care (breach of duty was conceded at trial); Why? Coherency of the law (in particular the problems of compatibility with a doctor owing such a duty to the unborn child in such cases with the existing duty owed to the mother and the duty owed by the mother to the unborn child); Is there really a conflict? If so, is that confined to this situation? 11
Crennan J The nature of the damage in question AH could not demonstrate in legal terms that nonexistence was preferable to a life with disabilities; There is no possibility of a court (or jury) ever apprehending or evaluating, or receiving proof of, the actual loss or damage as claimed by the appellant. It cannot be determined in what sense Alexia Harriton s life with disabilities represents a loss, deprivation, a detriment associated with non-existence [at 253] 12
Crennan J Legalism? Or in fact activism? It is odious and repugnant to devalue the life of a disabled person by suggesting that such a person would have been better off not to have been born into a life with disabilities [at 258] Invocation of the sanctity of life principle To allow the claim would be in breach of this principle which is upheld in other areas of the law (criminal law, anti-discrimination laws) Crennan J additionally found that no meaningful assessment of damages could be made 13
Versus Kirby J An argument from legalism? He argues that the term wrongful life is an emotive slogan and that the claim is in reality one for wrongful suffering ; Therefore he classifies the wrong not as the plaintiff s existence but as the suffering which has resulted from Dr S s admitted negligence 14
Kirby J He found that the claimed duty between Dr S and AH fell within the established duty of care which health care providers owe to the unborn in respect of pre-natal injuries; He grounded his reasoning in the reality of the plaintiff s situation, one in which the plaintiff presently both exists and suffers and that: It is neither necessary nor just to retreat into meditations on the mysteries of life. [at 60] 15
Kirby J He stressed that the law is more than an exercise in logic, and logical analysis, and that whilst logic is essential to our justice system, it should not become an exercise in injustice; Therefore an emphasis upon corrective justice 16
The result? Alexia Harrington was denied her claim for compensation; Her parents had not brought an action for wrongful birth within the time limit; Therefore she could not be compensated for the cost of her care or her pain and suffering 17
So what? 1. Sets a bar to claims by such plaintiffs a legal reality that life cannot constitute a legal injury ; But raises other questions about the law 18
So what? 2. Legal inconsistency? The HCA in Cattanah v Melchior (2003) allowed a claim for wrongful birth arising out of the failure of Dr M to warn Mrs M about the possibility of a failed sterilisation; Is it just for the law to allow a claim by the parents for the cost of raising a healthy child arising out of an unwanted pregnancy.. But to not allow a claim for the significantly greater financial hardship suffered by a child with extreme disabilities? Why has this situation arisen? 19
So what? 3. The law s relationship with ethics, religion and medical science Gives an insight into the way in which a principle derived from religious and ethical sources is utilised in legal reasoning; Does the law in fact always give trumping weight to the sanctity of life? Has the law not already recognised that life may occasionally be more of a burden than a benefit? 20