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Where am I now? Lawlink > Law Reform Commission > Publications > Chapter 18 - Legal Liability and Immunity of Medical Personnel
Discussion Paper 11 (1984) - Artificial Conception: Human Artificial Insemination
Chapter 18 - Legal Liability and Immunity of Medical Personnel
I. LIABILITY UNDER THE PRESENT LAW
18.1 There are no rules or principles of common law directed specifically to the liability of AID practitioners and other personnel involved in AID as a medical practice. However, the law of negligence is applicable, and obliges medical practitioners to observe a duty of care to patients. The law also imposes obligations because of the contractual relationship between them. It is useful to recall the following relationships that characterise AID and include medical personnel:
- doctor and patient (“doctor’ includes medical practitioner, hospital and clinic, and “patient” includes the recipient and the recipient’s husband or partner);
- doctor and semen donor;
- doctor and wife or partner of donor; and
- doctor and AID child.
We assume for present purposes that a person providing counselling in AID will be a medical practitioner or an employee of a medical practitioner, hospital or clinic. If not, the counsellor will form a separate relationship with the person counselled which will result in duties and obligations.
18.2 Legal liability of medical personnel in AID could relate to any of the various steps involved. These include the collection of semen testing it, freezing, storing and thawing it prior to use, the insemination procedure and the pregnancy. Accordingly, there could be many causes of injury or damage from AID. It is not possible to envisage them all. The most likely would seem to be those that could bring about the birth of a defective or diseased child or a disease in the recipient. Thoughts turn towards defective sperm failure of a donor to supply accurate health information, carelessness by medical personnel in screening and testing one or more of the parties, using semen that is racially or physically incompatible with the recipient or failure to observe secrecy or confidentiality.
II. NEED FOR LAW REFORM
A. General
18.3 A question arises whether there should be brought into existence special statutory provisions to impose duties upon AID practitioners and personnel, or to provide them with special immunity or relief from liability. We think that no need exists for measures of either kind, with one or two reservations made below. The reason is that the common law already imposes duties and obligations upon all the parties to AID, and confers rights and privileges in the same way that it does in relation to other forms of medical and professional practice. The normal processes of litigation should be sufficient until an inadequacy can be demonstrated.
B. Rights of Semen Donors
18.4 One apparent problem arises from the fact that a donor of semen is not a patient of an AID clinic and therefore does not enjoy the benefits of that status. However, a donor may reasonably expect anonymity, confidentiality and freedom from claims upon him by the recipient and AID child. We doubt that the status of patient would confer the two last-mentioned benefits; it would probably confer the first two to some degree. Our tentative view is that semen donors should be given a right or entitlement to anonymity and confidentiality of personal information consistent with our recommendations relating to record keeping in Chapters 12 and 21.1 This would not in our opinion, impose an unreasonable duty or burden on the medical profession or the record keeper. We see no reason for statutory provisions of the same kind relating to doctor and donor’s wife or partner, or doctor and AID child. If anonymity is to be realistically possible, it follows that careful consideration may be necessary for the creation of statutory immunity for donors and donors’ records from the obligation to evidence in legal proceedings or to give subpoenas aimed to place before a court information that could identify a donor as the biological or genetic father of an AID child. This may necessitate the creation of absolute privilege for AID donors and their records. However, we do not envisage this protection necessarily extending to a donor who deliberately or negligently gives false information about his health, as discussed in Chapter 19.
C. Immunities of Medical Personnel
18.5 We have expressed the tentative view in earlier Chapters that a number of statutory obligations and duties should be placed upon AID practitioners.2 If these views were implemented by legislation the medical profession could reasonably expect protection from liability if it acts in good faith to comply with the legislation. There is always the possibility that a practitioner or clinic may face a claim despite having attempted in good faith to discharge a statutory duty. Assume that an AID practitioner interviewed, screened and tested a semen donor pursuant to the requirements of a statute, but obtained defective semen because the donor lied. If the practitioner has acted in good faith and without negligence in the performance of a duty imposed by legislation he or she should be protected from liability. Even though this is almost certainly the common law in any event, a statutory statement to this effect may be beneficial Such a statement should include scientists and other staff who may not be registered medical practitioners.
D. Damages for Wrongful Birth and Wrongful Life
18.6 We wish to make brief reference to the appearance in recent years of two types of claim for damages that have been called respectively claims for wrongful birth and claims for wrongful life. The claim for wrongful birth will typically be a claim for damages by a parent against a medical practitioner who has negligently carried out a sterilization operation or an abortion with the result that the claimant has become the parent of an unexpected or unwanted child. The child may be normal or defective. Courts in England have been receptive to such claims to the extent of awarding damages for expense and pain and suffering up to the time of birth. They have, however, shown reluctance to accept the notion that damages should additionally be awarded for the birth of a normal child, basing their reluctance on public policy grounds that such a birth is a matter for rejoicing despite having its origins in a negligent act. In the case of a defective child, the courts have shown a readiness to award further damages on the basis of additional expense arising directly from the negligence.3
18.7 The claim for wrongful life is a claim for damages by a child for having been born at all. Such a claim has its origin also in a negligent act by a medical practitioner as a result of which the child is born with defects, for example, a child born with mental abnormalities because of a doctor’s negligent failure to diagnose rubella in the pregnant mother and advise her of the desirability of an abortion.4 The English courts have rejected such claims on public policy grounds, stating that it is unacceptable to give a person damages on the basis that the person would have been better off never to have been born at all.
18.8 It is possible that Australian courts may take a similar view of such claims, although it is to be noted that in the United States and Canada claims of this kind have been developed much further than in England. The possibility of claims for damages for wrongful birth or wrongful life or some analogous concept is obvious in relation to AID, and should be recognised. However, our view is that the law in this area is best left to the courts for determination and requires no initiative by way of legislation.
III. ISSUES FOR REFORM
18.9 (1) Should legislation impose specific legal liability upon medical personnel to pay compensation for damage or injury resulting from AID, or should the matter be left to the courts for judicial determination?
(2) Should legislation confer exemption from liability upon medical personnel who act in good faith and without negligence when performing an act or a duty imposed by legislation in relation to AID?
(3) Should legislation impose upon AID practitioners an obligation to observe confidentiality and give anonymity in relation to semen donors? (Note: this question arises because the relationship between Al D practitioner and semen donor is not normally that of doctor and patient).
Footnotes
1. See also para.7.17.
2. See also paras.6.2, 6.6-6.7, 7.3. 7.13-7.14, 7.20, 8.6, 10.10, 10.12, 12.29 and 13.1.
3. Watt v. Rama [1972] V.R. 353; Scuriaga v. Powell, 24 July 1984, Court of Appeal (Civil Division) transcript no.597 of 1980, CA (England); Udale v. Bloomsbury Area Health Authority [1983] 1 W.L.R. 1098; McKay v. Essex Area Health Authority [1982] Q.B. 1166. For some American decisions on “Wrongful Life”, see J.N. Turner, “Family Solidarity in the Brave New World” (1982) 7(3) Australian Child and Family Welfare 16. The law on this subject is by no means settled. In a recent English decision, Thake v. Maurice [1984] 2 All ER 116 513, Pain J. accepted a claim for breach of contract relating to a failed vasectomy and awarded damages for support of the resulting unplanned child to the age of 17. The plaintiff claimed that the defendant surgeon had given a collateral warranty that the Surgery would make him irreversibly sterile, and that as a result he was induced to have the operation. This case is to be contrasted with previously reported claims for wrongful birth, which were founded in negligence. Doubt has been cast on this decision and it is understood an appeal is pending. (See C.J. Lewis, “The Surgeon’s Duty of Disclosure-. Recent Developments” (1984) 81 (24) The Law Society’s Guardian Gazette 1827).
4. McKay v. Essex Area Health Authority [1982] Q.B. 1166.
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