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Medical Law John Devereux Digital Instant Download
Author(s): John Devereux, Rachael Moore
ISBN(s): 9781876213145, 1876213140
Edition: Kindle
File Details: PDF, 2.23 MB
Year: 2002
Language: english
MEDICAL LAW

Second Edition

CP
Cavendish
Cavendish
Publishing
Publishing
(Australia)
Limited
Pty Limited

Sydney•London
 MEDICAL LAW

Second Edition

John Devereux, BA, LLB (Qld), DPhil (Oxon)

Professor of Law, TC Beirne School of Law
University of Queensland

Updated Chapter 6 prepared by

Rachael Moore, BA, LLB (Qld)
Barrister of the Supreme Court of Queensland

CP
Cavendish
Publishing
(Australia)
Pty Limited

Sydney•London
Second edition first published 2002 by Cavendish Publishing (Australia) Pty
Limited, 3/303 Barrenjoey Road, Newport, New South Wales 2106
Telephone: (02) 9999 2777 Facsimile: (02) 9999 3688
Email: info@cavendishpublishing.com.au

Cavendish Publishing Limited, The Glass House, Wharton Street, London

WC1X 9PX, United Kingdom
Telephone: +44 (0)20 7278 8000 Facsimile: +44 (0)20 7278 8080
Email: info@cavendishpublishing.com
Website: www.cavendishpublishing.com

© Devereux, J 2002
First edition 1997
Second edition 2002

All rights reserved. Except as permitted under the Copyright Act 1968 (Cth),
no part of this publication may be reproduced or transmitted in any form or
by any means, electronic or mechanical, photocopying, recording or
otherwise, without the prior permission of the publisher and copyright
owner.
Any person who infringes the above in relation to this publication may be
liable to criminal prosecution and civil claims for damages.

National Library of Australia Cataloguing in Publication Data

Devereux, John
Medical law – 2nd edition – Bibliography – Includes index
1 Medical laws and legislation – Australia 2 Medical laws and legislation –
Australia – Cases
I Title
344.94041

ISBN 1 876213 14 0

Printed and bound in Great Britain

 PREFACE

Much has changed since Ian Kennedy was able to state:

Medical Law used to be fun. All you had to do was read lots of strange American
cases, the odd Commonwealth decision, and maybe some English 19th century
cases on crime. Then you could reflect that none of these was relevant and get on
with the fun of inventing answers [Kennedy, I, ‘The Patient on the Clapham
Omnibus’ (1984) 47 MLR 454].
Australian law is gradually weaving its distinctive, rich tapestry of medical law.
This book attempts to explain some (though by no means all) of the intricate
patterns inherent in the tapestry. This manuscript does not attempt to be a
definitive guide to the law, a function which is more properly the province of a
textbook. Rather, this work aims to provide a sourcebook of readings, cases and
commentary on medical law topics. (Nor, as it is customary to note these days,
is this book a substitute for professional legal advice in the event of a particular
medico-legal problem.)
It proved to be as much a challenge to decide what topics and materials to
leave out of this work as it was to decide which materials to include. In the end,
it was decided to divide the topics into two parts. In the first part, doctor-patient
interactions are characterised in terms of the legal obligations which arise. In
this part are to be found chapters on the constitutional limitations on the
delivery of health care, the application of criminal and civil battery to the
doctor-patient interaction and the use of the negligence action by aggrieved
patients. The duty of confidence is also explored.
In the second part, particular medical law problems are addressed. The final
chapter of the book makes brief reference to complaints schemes which are
currently operable in all jurisdictions in Australia.
The book is targeted at people who wish to know more about the way the
law views doctor-patient interactions. It is likely to be of most assistance to law
students. The book may also be of some interest to students of nursing or
medicine. With the latter in mind, as far as possible, each chapter has been
written so that it may be read as a separate entity.
In light of the potentially diverse readership, some licence has been taken
with respect to referencing style. Footnotes of extracts have been omitted to
avoid cluttering the text with extrinsic matters. The legal citation style of ‘page
number x at y’ which is apt to cause confusion to non-legal readers has been
abandoned, and in its place the use of the notation pp substituted to indicate
which pages of a text are extracted (where not all of a particular piece is
extracted).
I should like to thank those students at the University of Queensland,
University of Tasmania, Griffith University and the Northern Territory
University who, by their enthusiasm and good will, have made teaching
medical law a delight.

v
 Medical Law

My thanks go to Jo Reddy at Cavendish for her ready acceptance of a text,

cases and materials book on medical law and also to Ruth Massey for her
encouragement through the gestation of this book. The law is stated as available
to me at 31 March 2002.
This book is respectfully dedicated to my parents.

John Devereux
31 March 2002

vi
 ACKNOWLEDGMENTS

Grateful acknowledgment is made for the following:

Buetow, S, ‘Formal complaints and disciplinary proceedings involving medical
practitioners’ (1995) 14 Medicine and Law
Cica, N, ‘The inadequacies of Australian abortion law’ (1991) 5 Australian Journal
of Family Law 45–52
Creyke, R, Who Can Decide? Legal Decision Making for Others, 1995, Australian
Government Publishing Service
Dalpont, G and Chalmers, D, An Introduction to Equity in Australia and New
Zealand, 1996, Lawbook Co Ltd
Devereux, J, ‘Competency to consent to treatment: an introduction’, in
Freckelton, I and Petersen, K, Controversies in Health, 2000, Sydney: Law
Federation Press
Dickens, B, ‘Medical law: speciality or generality?’, from Medicine and the Law,
1993, Dartmouth Publishing Co
Godwin, J, Hamblin, J, Patterson, D and Buchanan, D, Australian HIV/AIDS
Legal Guide, 2nd edn, 1993, Sydney: Federation Press
Grubb, A and Pearl, D, ‘Blood testing, AIDS and DNA profiling’ [1990] Family
Law, Jordan Publishing Limited
Human Rights and Equal Opportunity Commission, Human Rights and Mental
Illness, 1993, Australian Government Publishing Service
Jones, M, Medical Negligence, 1991, London: Sweet & Maxwell. See now 2nd edn,
1995
Kennedy, I and Grubb, A, Medical Law; Text with Materials, 2nd edn, 1994,
London: Butterworths. See now 3rd edn, 2000
Macher, AM, ‘HIV Disease/AIDS: medical background’, in Webber, D (ed),
AIDS and the Law, 1992, New York: John Wiley and Sons, pp 3–5. See now 3rd
edn, 1997
Mason, JK and McCall-Smith, RA, Law and Medical Ethics, 1994, London:
Butterworths. See now McCall-Smith, 5th edn, 1999
National Health and Medical Research Council, An Australian Code of Practice for
Transplantation of Cadaveric Organs and Tissues, 1991, Australian Government
Publishing Service
Petersen, K, ‘Criminal abortion laws: an impediment to reproductive health?’, in
Freckelton, I and Petersen, K, Controversies in Health, 2000, Sydney: Law
Federation Press
Review of Professional Indemnity Arrangements for Health Care Professionals,
Compensation and Professional Indemnity in Health Care, 1994, Australian
Government Publishing Service

vii
 Medical Law

Somerville, MA, ‘Structuring the issues in informed consent’ (1981) 26 McGill

Law Journal 740, pp 742–52
Sommerville, A, ‘Are advance directives really the answer? And what was the
question?’, in McLean, SAM, Death, Dying and the Law, 1996, Dartmouth
Publishing Co
Veatch, RM (ed), Cross Cultural Perspectives in Medical Ethics, 1989, Jones and
Bartlett Publishers, Sudbury, MA, www.jbpub.com. See now 2nd edn, 2000
Wallace, M, Health Care and the Law, 2nd edn, 1995, Lawbook Co Ltd
Wheelwright, K, ‘Commonwealth and State powers in health – a constitutional
diagnosis’ (1995) 21 Monash University Law Review 53

Grateful acknowledgment is made to Butterworths for extracts from the

Australian Journal of Family Law; to the Lawbook Co Ltd for extracts from Journal
of Law and Medicine; Criminal Law Journal; Howard’s Criminal Law; to CCH
Australia Ltd for extracts from Australian Health and Medical Law Reporter; and to
Blackwell Publishers for extracts from Modern Law Review.
The AMA Code of Ethics is reproduced with the permission of the Australian
Medical Association.
The Code of Ethics of the Australian Nursing Council, developed under the
auspices of the Australian Nursing Council Inc, The Royal College of Nursing,
Australia and the Australian Nursing Federation is reproduced with the
approval of the Australian Nursing Council Inc.
Grateful acknowledgment is made to the Incorporated Council of Law
Reporting for England and Wales for permission to reproduce extracts from the
Law Reports and Weekly Law Reports. UK Parliamentary and Crown
Copyright material is reproduced with the permission of the Controller of Her
Majesty’s Stationery Office.
Every effort has been made to trace all the copyright holders, but if any have
been inadvertently overlooked the publishers will be pleased to make the
necessary arrangement at the first opportunity.

viii
 CONTENTS

Preface v
Acknowledgments vii
Table of Cases xiii
Table of Legislation xxiii

1 PRINCIPLES OF MEDICAL LAW 1

PART I: BIOETHICS 3
Autonomy 3
Beneficence 5
The conflict between autonomy and beneficence 7
PART II: NON-WESTERN MEDICAL PHILOSOPHIES 14
PART III: CONSTITUTIONAL LIMITATIONS ON THE DELIVERY
OF HEALTH CARE IN AUSTRALIA 24
Over what health matters, then, does the Commonwealth legislate? 36
State regulation of health care 42
2 CONSENT TO TREATMENT I – BATTERY 43
PART I: CONTRACT 43
Express terms 44
Implied terms 44
PART II: BATTERY 50
Volition 51
Information 57
Capacity 80
Children 88
Procedures not requiring consent (children or adults) 101
3 CONSENT TO TREATMENT II – NEGLIGENCE 111
PART I: DIAGNOSIS AND TREATMENT 111
Existence and scope of a duty of care 112
Breach of the duty 140
PART II: FAILING TO ADVISE OF ‘MATERIAL RISKS’ 199
Empirical studies on consent 261
Review of the use of negligence actions in health care settings 261
Trade Practices Act and the Fair Trading Act – sleepers? 262

ix
 Medical Law

4 CRIMINAL LAW ASPECTS OF TREATMENT 263

PART I: CRIMINAL BATTERY (ASSAULT) 263
PART II: ABORTION 269
PART III: ASSISTED SUICIDE, EUTHANASIA AND
ADVANCE DIRECTIVES 289
A competent patient may refuse any treatment – including
life-sustaining treatment 290
The distinction between causing death and letting die 294
Are advance directive statutes useful? 319
Developments in the Northern Territory 323
5 INFORMATION AND MEDICAL PRACTICE 331
PART I: CONFIDENTIALITY 331
Ethical obligations 331
Contract 331
Equity 331
Exceptions to confidentiality 341
Is there a duty of disclosure? 345
Compulsion due to statutory requirement 350
Court ordered access 352
PART II: ACCESS TO RECORDS 352
Do patients own their medical records? 352
Patient records and FOI legislation 362
Privacy guidelines 362
6 AIDS AND MEDICAL LAW 381
PART I: WHAT IS AIDS? 381
PART II: TESTING FOR HIV 384
PART III: A NATIONAL STRATEGY ON AIDS? 419

7 TRANSPLANTS 421
PART I: TRANSPLANTS IN AUSTRALIA 421
PART II: INTER VIVOS TRANSPLANTS 424
PART III: CAN A PERSON BE SAID TO OWN HIS OR
HER BODILY PARTS? 427
PART IV: TRANSPLANT LEGISLATION 431

x
 Contents

8 COMPLAINTS 445
PART I: COMPLAINTS SCHEMES 445
New South Wales 447
Victoria 448
Queensland 449
Australian Capital Territory 462
South Australia 462
Tasmania 462
Northern Territory 463
Western Australia 463
PART II: DISCIPLINARY PROCEEDINGS 474

Index 481

xi
 TABLE OF CASES

Ackroyds (London) Ltd v Islington Plastics Ltd (1962) RPC 97 . . . . . . . . . . . . . . . . . . . 339

Agar-Ellis, In Re (1883) 24 Ch D 317 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
Agnew v Parkes (1959) 343 P (2d) 118. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
Airedale NHS Trust v Bland [1993] AC 789. . . . . . . . . . . . . . . . . . . . . . . . . . . . 290, 294, 301
Albrighton v Royal Prince Alfred Hospital (1980) 2 NSWLR 542 . . . . . . . . . . . . . 177, 187
Alcock v Chief Constable [1992] 1 AC 310 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130
Alexander v Heise and Another [2001] NSWSC 69 . . . . . . . . . . . . . . . . . . . . . . . . . 189, 199
Alphacell Ltd v Woodward [1972] 2 WLR 1320 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 246
Athey v Leonati (Supreme Court of Canada) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 241
Attorney General (ex rel), Kerr v T . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 284, 285
Attorney General v Guardian Newspapers Ltd and Others (No 2)
(Spycatcher Case) [1988] 3 All ER 545; [1987] 1 WLR 1248. . . . . . . . . . . . 339, 340, 343
Attorney General v Mulholland [1963] 1 All ER 767;
[1963] 2 QB 477 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 343
Attorney General for the United Kingdom v Heinemann
Publishers Australia Pty Ltd and Another
(1987) 10 NSWLR 86; (1987) 75 ALR 353 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 340
Attorney General for Victoria (ex rel Dale and Others)
v The Commonwealth and Others (1945) 71 CLR 237 . . . . . . . . . . . . . . . . . . . . . 26, 28
Attorney General’s Department and Another v Cockcroft
(1986) 64 ALR 97. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 339
Attorney General’s Reference (No 6 of 1980) [1981] QB 715 . . . . . . . . . . . . . . . . . . . . . . 388
Auckland Area Health Board v Attorney-General [1993] 1 NZLR 235. . . . . 295, 296, 298
Austen’s Case (1990) unreported, Supreme Court NSW. . . . . . . . . . . . . . . . . . . . . 302, 304
Avenhouse v Hornsby Shire Council (1998) 44 NSWLR 1 . . . . . . . . . . . . . . . . . . . . . . . 126

BT v Oei [1999] NSWSC 1082 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120, 199

Baker’s Case (1972) unreported, Tasmania. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 301
Banbury v Bank of Montreal [1918] AC 626 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Bank of New South Wales v The Commonwealth . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Barker v R (1983) 153 CLR 338; (1983) 47 ALR 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
Barnes’ Case (1981) unreported, Supreme Court NSW . . . . . . . . . . . . . . . . . . . . . . . . . . 304
Barnett v Chelsea and Kensington Hospital
Management Committee [1969] 1 QB 427 . . . . . . . . . . . . . . . . . . . . . . . . . . 119, 156, 158
Basser v Medical Board of Victoria [1981] VR 953 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 480
Bateman (1925) 19 Cr App R 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 266
Battersby v Tottman and State of South Australia
(1985) 37 SASR 524. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177, 199
Bayliss, Re (1986) 9 QL 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 284, 285

xiii
 Medical Law

Beausoleil v Sisters of Charity (1964) 53 DLR (2d) 65 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

Bennett v Minister of Community Welfare . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210, 216, 254
Berger v Mutton (1990) unreported, NSW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218, 222
Betts v Whittingslowe . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 226
Birtchnell v Equity Trustees, Executors and Agency Co Ltd . . . . . . . . . . . . . . . . . . . . . 357
Bolam v Friern Hospital Management Committee
[1957] 1 WLR 582; [1957] 2 All ER 118 . . . . . . . . . . . . . . . . 112, 177, 178, 199, 201, 202,
204–06, 211, 297, 298, 301
Bolduc v R (1967) 63 DLR (2d) 82 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Bonner v Moran (1941) 126 F (2d) 121 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 425
Boro v Superior Court (1985) 163 Cal App (3d) 1224 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Bourne’s Case (Qld) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 283–85, 288
Bowater v Rowley Regis Corporation [1944] KB 476 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Brady v Hopper (Colorado District Court). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 347
Breen v Williams (1996) 186 CLR 71 (High Court of Australia) . . . . . . . . 211, 352, 360–62
British Medical Association v Commonwealth . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34, 35
Bryan v Maloney (1995) 182 CLR 609 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125
Bustos v Hair Transplant Pty Ltd and Peter Wearne
(1986) unreported, NSW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219, 222
Buttersworth v Swint (1938) 188 SE 770 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117

C (Refusal of Medical Treatment), Re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83, 85

CES v Superclinics (1995) Aust Torts Reps 81-360 . . . . . . . . . . . . . . . . . . 249, 276, 280, 289
Caltex Oil (Australia) P/L v The Dredge ‘Willemstad’
(1976) 136 CLR 529. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
Carslogie Steamship Co Ltd v Royal Norwegian
Government . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 231
Central of Georgia Railway Co v Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 232
Chantrey Martin & Co v Martin [1953] 2 All ER 691;
[1953] 2 QB 286 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 343
Chaplin v Hicks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 235
Chasney v Anderson [1950] 4 DLR 223. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155
Chatterton v Gerson [1981] QB 432 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57, 60, 83, 95, 199,
385, 387, 391
Children v Frye (1931) 158 SE 744 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
Chin Keow v Government of Malaysia and Another
[1967] 1 WLR 813 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141
Church of Scientology v Kaufman (1973) RPC 635. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 338
Clive A Chappel v Beryl Jean Hart [1998] HCA 55 . . . . . . . . . . . . . 210, 214, 216, 217, 225

xiv
 Table of Cases

Coco v AN Clark (Engineers) Ltd [1969] RPC 41 . . . . . . . . . . . . . . . . . . . . . . . 332, 338, 339

Coggs v Bernard [1703] 92 ER 107 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Cole v Turner (1704) 6 Mod 149 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Collins v Willcock [1984] 1 WLR 1172 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
Commonwealth v John Fairfax and Sons Ltd
(1980) 147 CLR 39. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 339
Corrs Pavey Whiting and Bryne v Collector of Customs
(Vic) and Another (1987) 74 ALR 428. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 338, 339
Cranley v Medical Board of Western Australia
(1990) Supreme Court of Western Australia (Australian
Health and Medical Law Reporter, para 77-036) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 479
Crimmins v Stevedoring Industry Finance Committee
(1999) ALJR 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187
Crisp v Keng (1992) unreported . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148

D v S (1981) LS (SA) JS 405. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59

Darley v Shale (1992) unreported. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148, 153
Den Heyer’s Case (1990) unreported, Parramatta District Court NSW . . . . . . . . . . . . 308
Di Marco v Lynch Homes-Chester County Inc
583 A 2d 422 (1990); 559 A 2d 530 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128, 129
Diamond v Chakrabarty (1980) 447 US 303 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 430
Donoghue v Stevenson [1932] AC 562 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111, 334
Doodeward v Spence (1908) 6 CLR 406 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 429, 430
Drobek v Braun [1999] NSWCA 264 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185
Dryden v Surrey County Council and Stewart
[1936] 2 All ER 535 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156
Dwan v Farquhar [1988] 1 Qd R 234 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115

Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 . . . . . . . . . . . . . 59, 139, 186, 221
Empire, The . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 230
Environment Agency (formerly National Rivers
Authority) v Empress Car Co (Abertillery) Ltd . . . . . . . . . . . . . . . . . . . . . 238, 251, 256
Esanda Finance Corporation Ltd v Peat Marwick
Hungerford (1997) 188 CLR 241 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125
Evans v Liverpool Corporation [1906] 1 KB 160 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120
Exchange Telegraph Company Ltd
v Central News Ltd [1897] 2 Ch 48 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 340
Exchange Telegraph Company Ltd
v Gregory and Co [1896] 1 QB 147 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 340

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 Medical Law

Exelby v Handyside (1749) 2 East PC 652. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 429

Eyre v Measday [1986] 1 All ER 488 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44, 48, 50

F (Mental Patient: Sterilisation), In Re [1990] 2 AC 1 . . . . . . . . . . . . . . . . . . . . . 50, 102, 292

F v R (1983) 33 SASR 189 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177, 212, 214
F v West Berkshire Health Authority
[1989] 2 All ER 545; [1990] 2 AC 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 294, 297, 298
Faulkner v Keffalinos . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 247, 255
Federal Council of the British Medical Association in
Australia and Others v The Commonwealth
and Others (1949) 789 CLR 201 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Findlay v Board of Supervisions of the County of
Mohave (1951) 230 P (2d) 526 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
Fitzgerald v Penn . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 229, 246
Forman v Pillsbury (1990) 753 F Supp 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178
Franchi v Franchi (1967) RCC 149 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 339
Freeman v The Home Office (No 2) [1984] 1 QB 524 . . . . . . . . . . . . . . . . . . . . . . . . . 54, 391
Frenchay Healthcare NHS Trust v S [1994] 2 All ER 403 . . . . . . . . . . . . . . . . . . . . . . . . . 300
Furness v Fitchett [1958] NZLR 396 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 333

Geissman v O’Keefe and Another (1994) unreported, NSW . . . . . . . . . 140, 146, 153, 224
General Practitioners Society of Australia
v Commonwealth (1980) 145 CLR 532 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Gillick v West Norfolk Area Health Authority
[1986] 1 AC 112. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87, 88, 94–98, 274
Giurelli v Girgis (1980) 24 SASR 264 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141, 175
Gloning v Miller [1954] 1 DLR 372. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156
Goodwill v British Pregnancy Advisory Service
[1996] 2 All ER 161 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
Gover v State for South Australia and Perriam . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 216
Greaves & Co (Contractors) Ltd
v Baynham Meikle & Partners [1975] 1 WLR 1095 . . . . . . . . . . . . . . . . . . . . . . . . 49, 50

Haynes’s Case (1614) 12 Co Rep 113 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 429

Heathcote v New South Wales Nurses Board
(1991) unreported, NSW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 475
Hegarty v Shine (1878) 4 LR Ir 288. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 391
Hewer v Bryant [1970] 1 QB 357. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
Hill v Van Erp (1997) 188 CLR 159. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126

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 Table of Cases

Hills v Potter [1984] 1 WLR 641 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 387

Hister v Randolf (1986) 17 P (2d) 774. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
Hocking v Bell [1948] WN 21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156, 217
Hoile v Medical Board of South Australia
(1960) 104 CLR 157 (SA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 476
Hollinrake’s Case (1992) unreported, Supreme Court Vic . . . . . . . . . . . . . . . . . . . . . . . 307
Home Office v Dorset Yacht Co Ltd [1970] 2 WLR 1140 . . . . . . . . . . . . . . . . . . . . . . . . . 348
Hospital Products Ltd v United States Surgical Corporation
(1984) unreported. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 356–58
Hotson v East Berkshire Area Health Authority. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 241
Hribar v Wells (1995) unreported, SA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 224
Hughes v Lord Advocate. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 212
Hunter v Mann [1974] 2 All ER 414; [1974] QB 767 . . . . . . . . . . . . . . . . . . . . . 333, 343, 350
Hurtley v Eddingfield (1901) 59 NE 1058 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117

In the Estate of Brooks, In Re (1965) 205 NE (2d) 435 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105

Initial Services Ltd v Putterill
[1967] 3 All ER 145; [1968] 1 QB 396 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 343
Interfirm Comparison (Australia) Pty Ltd v Law Society of
New South Wales (1975) 2 NSWLR 104. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 339

J (A Minor) (Wardship: Medical Treatment), Re

[1990] 3 All ER 930; [1991] Fam 33 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 298
Jaensch v Coffey (1984) 155 CLR 549 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125
Jane Carlene and Darren John Kite v Peter Malaycha;
Jayne Carlene and Darren John Kite v Peter Malycha
and Peter Malycha Pty Ltd (1998) 71 SASR 321 . . . . . . . . . . . . . . . . . . . . . 161, 179, 180
Johnston v Wellesley Hospital (1970) 17 DLR (3d) 139 . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
Johnstone’s Case (1987) unreported, Supreme Court SA . . . . . . . . . . . . . . . . . . . . . . . . 305
Jones v Manchester Corporation [1952] 2 All ER 125 . . . . . . . . . . . . . . . . . . . . . . . . 153, 193

K v Minister for Youth and Community Services

(1982) 1 NSWLR 311 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100, 287
Kaimowitz v Michigan Department of Mental Health
(1973) unreported. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Kalokerinos v Burnett (1996) unreported. . . . . . . . . . . . . . . . . . . . . . 169, 173, 174, 176, 178
Karpati v Spira (1995) (NSW) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 222
Kelly’s Case (1989) unreported, Supreme Court Qld . . . . . . . . . . . . . . . . . . . . . . . . . . . 307

xvii
 Medical Law

Laferrière v Lawson (Supreme Court of Canada). . . . . . . . . . . . . . . . . . . . . . . . . . . 240, 242

Larkin’s Case (1983) unreported, Supreme Court, Victoria . . . . . . . . . . . . . . . . . . 302, 308
Latter v Braddell (1881) 50 LJ QB 448 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Leask Timber and Hardware Pty Ltd v Thorne . . . . . . . . . . . . . . . . . . . . . . . . . . . . 230, 235
Lindsay County Council v Marshall [1937] AC 97 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120
Lion Laboratories v Evans [1984] 2 All ER 417; [1985] QB 526 . . . . . . . . . . . . . . . . . . . . 343
Lipari v Sears, Roebuck & Co (Federal District Court USA) . . . . . . . . . . . . . . . . . . . . . . 347
Locher and Another v Turner (1994) unreported, Supreme Court Qld . . . . 144, 169, 223
Lowns v Woods, by His Next Friend The Protective
Commissioner and Others (1996) unreported . . . . . . . . . . . . . . . . . . . . . . 115, 131, 193

Mahon v Osbourne [1939] KB 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154–56

Malette v Shulman (1990) 67 DLR (4th) 321 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102, 105, 292
Maloney v Commissioner for Railways (NSW) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213
March v Stramare (E & MH) Pty Ltd . . . . . . . . . . . . . . . . . . . . . . . . . . . . 229, 230, 234, 237,
255, 260
Marlec v J C Hutton Pty Ltd (Supreme Court of Queensland). . . . . . . . . . . . . . . . . . . . 243
Marshall v Curry (1933) 3 DLR 260 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
Maynard v West Midland Regional Health Authority
[1984] 1 WLR 634 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177
Meares and Wanless’ Case (1989) unreported, Supreme Court NSW . . . . . . . . . . . . . 303
Medical Practitoners Act ex p Meehan; Re
[1965] NSWR 50 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 474
Mense v Milenkovic [1973] VR 784 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 332
Monarch Steamship Co Ltd
v Karlshamns Oljefabriker (A/B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 231
Moore v Regents of University of California
(1990) 793 P (2d) 479 (Cal). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 428
Moorcock, The (1889) 14 PD 64; [1886–90] All ER Rep 530 . . . . . . . . . . . . . . . . . . . . . . . . 47
Moorgate Tobacco Co Ltd v Phillip Morris Ltd and
Another (No 2) (1983/84) 156 CLR 414 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 338
Murray v McMurchy (1949) 2 DLR 442. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102

National Insurance Co of New Zealand v Espagne . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 246

Naxakis v Western General Hospital and Another
(1999) 197 CLR 269. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112
New South Wales Medical Board ex p Fitzgerald, Re
(1945) 46 SR (NSW) 111. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 478

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 Table of Cases

Norberg v Wynrib. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 359

Norfolk and Norwich Health Care (NHS) Trust v W. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85

O’Brien v Cunard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 389

O’Brien v Komesaroff (1982) 150 CLR 310 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 339
O’Brien v Wheeler (1997) unreported . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174
O’Shea v Sullivan and Macquarie Pathological Services
(1994) Aust Torts Reports 81-273. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161
O’Sullivan v Little (1995) unreported, ACT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 224

P (A Minor), In Re (1981) 80 LGR 301 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91

Pallante v Stadiums Pty Ltd (No 1) [1976] VR 331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
Papadimitropoulos v R (1957) 98 CLR 249. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72, 74–77, 79
Parry-Jones v Law Society [1968] 1 All ER 177; [1969] 1 Ch 1 . . . . . . . . . . . . . . . . . 343, 351
Paton and Another v Parker [1941] 65 CLR 187 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144
People v Ogunmola (1987) 192 Cal App (3d) 277 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Perre v Apand Pty Ltd [1999] HCA 36; (1999) 73 ALJR 1190 . . . . . . . . . . . . . 125, 199, 213
Philips v William Whiteley Ltd [1938] 1 All ER 566 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 266
Pillai v Messiter (No 2) (1989) 16 NSWLR 197 (NSW) . . . . . . . . . . . . . . . . . . . . . . . . . . . 477
Pioneer Concrete Services Ltd and Another
v Galli and Another (1985) VR 675 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 339
Pittman Estate v Bain (1994) 112 DLR (4th) 257. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127
Port of Melbourne Authority v Anshun (1981) 147 CLR 589 . . . . . . . . . . . . . . . . . . . . . 172
Practice Note (Discontinuation of Feeding) [1994] 2 All ER 413. . . . . . . . . . . . . . . 300, 301
Puntoriero v Water Administration Ministerial Corporation. . . . . . . . . . . . . . . . . . . . . 217
Pyrenees Shire Council v Day [1998] HCA 3; (1998) CLR 330 . . . . . . . . . . . . . . . . 126, 127

Qantas Airways Ltd v Cameron (1996) 66 FCR 246 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 186

R (A Minor), In Re (1981) 80 LGR 301 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87

R, In Re [1992] Fam 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
R v Bayliss and Cullen (1986) 9 QL 8. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 275, 285, 286
R v Brown [1994] 1 AC 212 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 268
R v Case (1850) 1 Den 580; [1850] 169 ER 381. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
R v Clarence (1888) 22 QB 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 387–89, 391
R v Collins ex p S (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
R v Cox (1992) 12 BMLR 38 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 290, 294

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R v D [1984] AC 778 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
R v Davidson (1969) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 274, 275, 280, 282, 284–86
R v Department of Health ex p Source Informatics Ltd
[1999] 4 All ER 185 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 361
R v Donovan [1934] 2 KB 498 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 388
R v Flattery (1877) 2 QB 410. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76, 77
R v Harms [1944] 2 DLR 61 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73–75
R v Howard [1966] 1 WLR 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
R v Howes (1860) 3 E & E 332 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
R v Instan [1893] 1 QB 453 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
R v Lambert [1919] VLR 205 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76, 77
R v Lang (1975) 62 Cr App R 50 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
R v Maurantonia [1968] 1 OR 145. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
R v Mid-Glamorgan Family Health Services
ex p Martin [1995] 1 WLR 110 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 356
R v Mobilio [1991] 1 VR 339 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
R v Morgan [1970] VR 337 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75, 77–79
R v Roden (1981) 4 A Crim R 166 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
R v Rosinski (1824) 1 Lew CC 11; [1824] 168 ER 941. . . . . . . . . . . . . . . . . . . . . . . . . . . 67, 75
R v Wald (1971) 3 NSWDCR 25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 275, 286–88
R v Williams [1923] 1 KB 340 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62, 67, 77
Rance v Mid-Downs Health Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 275
Randolph v City of New York (1984) unreported. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
Rank Hovis McDougall’s Application
(1974) 46 Australian Official Journal of Patents,
Trade Marks and Designs 3915 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 429
Read v J Lyons & Co Ltd [1947] AC 156 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 288
Reibl v Hughes (1978) 89 DLR (3d) 112;
(1980) 114 DLR (3d); [1980] 2 SCR 880 . . . . . . . . . . . . . . . . . . . 58, 63, 104, 203, 206, 391
Reisner v Regents of the University of California
37 Cal Rptr 2d 518 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128
Rice v Connolly [1966] 2 QB 414. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 341
Roe v Minister of Health [1954] 2 QB 66 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113, 115
Rogers v Whitaker (1992) 175 CLR 479 . . . . . . . . . 59, 84, 111, 112, 132, 148, 174, 177, 178,
188, 193, 199, 200, 204, 205, 210, 211,
213–16, 219–25, 236–38, 241, 244,
251, 254, 280, 301, 359, 451, 454
Rosenberg v Percival [2001] HCA 18. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 204, 218
Ross v McCarthy (1955) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 283, 285

xx
 Table of Cases

Saltman Engineering Co Ltd v Campbell

Engineering Co Ltd (1947) 65 RPC 203 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 338, 339
Samios v Repatriation Commission (1960) WAR 219. . . . . . . . . . . . . . . . . . . . 176, 178, 179
Savage’s Case (1992) unreported, Newcastle District Court NSW . . . . . . . . . . . . . . . . 308
Schering Chemicals v Falkman Ltd and Others [1982] QB 1. . . . . . . . . . . . . . . . . . . . . . 340
Schloendorff v Society of New York Hospital
(1914) 211 NY 125. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51, 103
Secretary of State for Health and the Department of Health
and Community Services v JWB and SMB
(Marion’s case) (1992) 175 CLR 218 . . . . . . . . . . . . . . . . . . . . . . . . . . . 86, 87, 95, 98, 268,
274, 452, 454
Secretary of State for the Home Department
v Robb [1995] Fam 127 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85, 293
Sellars v Adelaide Petroleum NL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 239, 241
Sharin Qumsieh v The Guardianship and Administration
Board and Lance Pilgrim [1998] VSCA 45 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
Sidaway v Board of Governors of Bethlem Royal Hospital
[1985] AC 871. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43, 177, 201, 202, 205,
354–56, 389, 391, 392
Skinner v Beaumont (1974) 2 NSWLR 106 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 479
Smith v Barking, Havering and Brentwood Health Authority. . . . . . . . . . . . . . . . . . . . 217
Smith and Another v Lennard (1994) unreported. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158
Snell v Farrell (Supreme Court Canada) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 240
Snell v Pryce (1989) unreported, Supreme Court NT . . . . . . . . . . . . . . . . . . . . . . . . . . . 337
Stacey v Chiddy (1993) 4 Med LR 345 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158, 161
Stairmand v Baker (1992) unreported . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161
Stansbie v Troman. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 238
Stevenson v Medical Board of Victoria (1986)
unreported, Supreme Court of Victoria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 478
Stogberg v Elliott [1923] CPD 148. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Stokes v Guest, Keen and Nettlefold (Bolts and Nuts) Ltd
[1968] 1 WLR 1776 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120
Strangeways-Lesmere v Clayton [1936] 2 KB 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153
Sturch v Willmott (1995) unreported, Qld . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223
Sutherland Shire Council v Heyman [1985] 59 ALTR 564;
[1985] 60 ALR 1; (1985) 157 CLR 424 . . . . . . . . . . . . . . . . . . . . . . . . . . 117, 118, 127, 349
Swan v South Australia (Supreme Court of South Australia) . . . . . . . . . . . . . . . . . . . . 349

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 Medical Law

T (Adult: Refusal of Treatment), In Re [1993] Fam 95 . . . . . . . . . . . . . . . . . . . . . 84, 85, 291

Tai v Hatzistavrou [1999] NSWCA 306. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161, 169
Tameside v Glossop Acute Services Trust v CH . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
Tarasoff v Regents of University of California
(Supreme Court of California) (The Tarasoff decision) . . . . . . . . . . . . . . . 345–47, 349
Thake and Another v Maurice [1986] 1 QB 644 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48, 331
Thiel’s Case (1990) unreported, Supreme Court NSW . . . . . . . . . . . . . . . . . . . . . . 303, 308
Thomas Marshall (Exports) Ltd v Guinle [1979] Ch 227 . . . . . . . . . . . . . . . . . . . . . . . . . 340
Thompson v County of Alameda
(Supreme Court, California) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 347, 348
Thompson’s Case (1981) unreported, Supreme Court NSW . . . . . . . . . . . . . . . . . 303, 305
Thomsen v Davison (1975) Qd R 93 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120, 176, 178–80
Tournier v National Provincial and Union Bank of England
[1924] 1 KB 461; [1923] All ER Rep 550. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 343

Vale v Ho (1995) unreported, NSW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223

Versteegh v Nurses Board of South Australia
(1992) Supreme Court of South Australia, Australian
Health and Medical Law Reporter, para 77-064. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 477
Vievers v Connolly [1995] 2 Qd R 326 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 289
Vitleto v Gennedy (1981) 33 OR (2d) 497 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
Voli v Inglewood Shire Council (1963) 110 CLR 74 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130

W, In Re [1993] Fam 64. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87, 98

W v Egdell [1990] 1 Ch 359 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 342, 345
Wang v Central Sydney Area Health Services
and two Others [2000] NSWSC 515 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180
Werth v Taylor (1991) 475 NW (2d) 426 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 292
Whitehouse v Jordan [1981] 1 WLR 246;
[1981] 2 All ER 267 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177
Wilson v Pringle [1986] 3 WLR 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Wood v Queensland Medical Laboratories (1994) unreported. . . . . . . . . . . . . . . . . . . . 158
Woolnough (1977) unreported, CA (NZ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 286
Wyong Shire Council v Shirt (1980) 146 CLR 40 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148, 214

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 TABLE OF LEGISLATION

Australian Capital Territory s 6. . . . . . . . . . . . . . . . . . . . . . . . . . . . 435

ss 6–10 . . . . . . . . . . . . . . . . . . . . . . . . 434
Blood Donation (Acquired ss 11–14 . . . . . . . . . . . . . . . . . . . . . . . 435
Immune Deficiency ss 15–19 . . . . . . . . . . . . . . . . . . . . . . . 436
Syndrome) Act 1985— ss 20–23 . . . . . . . . . . . . . . . . . . . . . . . 440
ss 4, 5 . . . . . . . . . . . . . . . . . . . . . . . . . 438 ss 26–31 . . . . . . . . . . . . . . . . . . . . . . . 437
ss 36–43 . . . . . . . . . . . . . . . . . . . . . . . 441
s 44. . . . . . . . . . . . . . . . . . . . . . . . . . . 432
Crimes Act 1900 . . . . . . . . . . . . . . . . . . . 278 s 45. . . . . . . . . . . . . . . . . . . . . . . . . . . 437

Health Complaints Act 1993 . . . . 462, 471

Commonwealth
Health Professions Boards Administrative Decisions
Procedures Act 1981. . . . . . . . . . . . 471 (Judicial Review) Act 1977 . . . . . . 361
s 27. . . . . . . . . . . . . . . . . . . . . . . . . . . 472
Australian Courts Act 1828 . . . . . . . . . 427
Health Records/Privacy and
Access Act 1987. . . . . . . . . . . . . . . . 360
Commonwealth of Australia
Health Regulation (Maternal
Constitution . . . . . . . . . . . . . . . . . 26, 27
Health Information)
s 16A(1). . . . . . . . . . . . . . . . . . . . . . . . 35
Act 1998 . . . . . . . . . . . . . . . . . . . 276–78
s 16A(2), (3) . . . . . . . . . . . . . . . . . . . . 36
ss 5–7 . . . . . . . . . . . . . . . . . . . . . . . . . 278
s 51. . . . . . . . . . . . . . . . . . . . . . 26, 27, 31
ss 8, 9 . . . . . . . . . . . . . . . . . . . . . . . . . 279
s 51(xiv). . . . . . . . . . . . . . . . . . . . . . . . 26
s 12. . . . . . . . . . . . . . . . . . . . . . . . . . . 278
s 51(xxiii) . . . . . . . . . . . . . . . . . . . 26–28
s 51(xxiiiA). . . . . . . . . . . . 27–29, 31–37
Medical Treatment Act 1994 . . . . . . . . 313 s 81. . . . . . . . . . . . . . . . . . . . . . . . . 26–28
ss 4, 5, 10 . . . . . . . . . . . . . . . . . . . . . . 313 s 96. . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
ss 11, 12, 20–22. . . . . . . . . . . . . . . . . 314 s 128. . . . . . . . . . . . . . . . . . . . . . . . . . . 31
s 23. . . . . . . . . . . . . . . . . . . . . . . . . . . 315 Customs Act . . . . . . . . . . . . . . . . . . . . . . . 36

Ombudsman Act 1989 . . . . . . . . . . . . . 473 Fair Trading Act. . . . . . . . . . . . . . . 262, 459

Family Law Act 1975. . . . . . . . . . . . . . . . 96
Public Health Act 1928 . . . . . . . . . 411, 418 Family Law Act 1986—
Public Health Act 1997 . . . . . . . . . 411, 412 s 63E(1) . . . . . . . . . . . . . . . . . . . . . . . . 97
ss 18(1), 76, 92 . . . . . . . . . . . . . . . . . 411 Federal Act 1943. . . . . . . . . . . . . . . . . . . . 26
s 102(4), (5) . . . . . . . . . . . . . . . . . . . . 412
Federal Privacy Act . . . . . . . . . . . . . . . . 360
ss 103–05. . . . . . . . . . . . . . . . . . . . . . 412
Public Health (Infectious and
Notifiable Diseases) Health Insurance Act 1973 . . . . . 33, 36–40
Regulations 1983. . . . . . . . . . . 384, 418 s 3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
regs 3(3), 13, 14, 20, 23 . . . . . . . . . . 418 Sched 2 . . . . . . . . . . . . . . . . . . . . . . . . 37
Health Insurance Amendment
Act 1977 . . . . . . . . . . . . . . . . . . . . 33, 40
Transplantation and Anatomy
Act 1978 . . . . . . . . . . . . . . . . . . 109, 421 Health Insurance Amendment
ss 4, 5 . . . . . . . . . . . . . . . . . . . . . . . . . 433 Act 1995 . . . . . . . . . . . . . . . . . . . . 40, 41

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 Medical Law

Health Insurance Commission Children (Care and Protection)

Act 1973 . . . . . . . . . . . . . . . . . . . . . . . 39 Act 1987 . . . . . . . . . . . . . . . . . . . . . . 109
Health Insurance (Private Health s 20A . . . . . . . . . . . . . . . . . . . . . . . . . 440
Insurance Reform) Amendment Crimes Act 1900—
Act 1994 . . . . . . . . . . . . . . . . . . . . . . . 39 s 31(c) . . . . . . . . . . . . . . . . . . . . . . . . 309
Human Rights and Equal Opportunities s 83. . . . . . . . . . . . . . . . . . . . . . . 286, 287
Act 1986—
Sched 5 . . . . . . . . . . . . . . . . . . . . . . . 457 Dentists Act 1934 . . . . . . . . . . . . . . . . . . . 99

Medicare Agreements Act 1993 . . . . . 459 Freedom of Information

Act 1989 . . . . . . . . . . . . . . . . . . . . . . 468
National Health Act 1953 . . . . . . . . . 36, 39
s 75G . . . . . . . . . . . . . . . . . . . . . . . . . . 40 Health Administration
Act 1982 . . . . . . . . . . . . . . . . . . . . . . 335
Patent Act 1990. . . . . . . . . . . . . . . . . . . . 430 Health Complaints
s 18(2) . . . . . . . . . . . . . . . . . . . . . . . . 430 Act 1993 . . . . . . . . . . . . . . 447, 448, 466
Pharmaceutical Benefits Human Tissue Act 1983 . . . . . . . . 109, 421
Act 1944 . . . . . . . . . . . . . . . . . . . . 26–29 Pt IIIA . . . . . . . . . . . . . . . . . . . . . . . . 438
Pharmaceutical Benefits Pt IIIB . . . . . . . . . . . . . . . . . . . . . . . . 440
Act 1947–1949 . . . . . . . . . . . . . . . 27–30 ss 4, 5 . . . . . . . . . . . . . . . . . . . . . . . . . 433
s 7A . . . . . . . . . . . . . . . . . . . . . . . . 28–32 ss 6–9 . . . . . . . . . . . . . . . . . . . . . . . . . 434
s 16. . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 ss 6, 10–11. . . . . . . . . . . . . . . . . . . . . 435
ss 12–15 . . . . . . . . . . . . . . . . . . . . . . . 436
Privacy Act 1988. . . . . . . . . . . . . . . 360, 361 ss 22–27 . . . . . . . . . . . . . . . . . . . . . . . 437
Privacy and Personal Information s 27A . . . . . . . . . . . . . . . . . . . . . . . . . 438
Act 1998 . . . . . . . . . . . . . . . . . . . . . . 360 s 32. . . . . . . . . . . . . . . . . . . . . . . . . . . 432
s 33. . . . . . . . . . . . . . . . . . . . . . . . . . . 437
Privacy Amendment (Private Sector)
Act 2000 . . . . . . . . . . . . . . . . . . . . . . 360
Private Health Insurance Justices Act 1902—
Complaints Levy Act 1995 . . . . . . . 40 s 56. . . . . . . . . . . . . . . . . . . . . . . . . . . 415

Quarantine Act 1908 . . . . . . . . . . . . . . . . 26 Lunacy Act 1898. . . . . . . . . . . . . . . . . . . 478

States (Tax Sharing and Health Medical Practice Act 1992. . . . . . . . . . . 335
Grants) Act 1981 . . . . . . . . . . . . . . . . 37 Medical Practitioners
Act 1938 . . . . . . . . . . . . . . . . . . . . . . 131
s 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . 269
Trade Practices Act 1974. . . . . 41, 262, 459
s 27(2) . . . . . . . . . . . . . . . . . . . . 117, 118
New South Wales Minors (Property and Contracts)
Act 1970—
Administrative Decisions Tribunal s 49. . . . . . . . . . . . . . . . . . . . . 87, 99, 100
Act 1997 . . . . . . . . . . . . . . . . . . . . . . 396 s 49(1), (2) . . . . . . . . . . . . . . . . . . . . . . 98
s 49(3), (4) . . . . . . . . . . . . . . . . . . . . . . 99

xxiv
 Table of Legislation

Nurse Registration Act 1953— Northern Territory

s 19. . . . . . . . . . . . . . . . . . . . . . . . . . . 475
Criminal Code 1983. . . . . . . . 264, 285, 336
s 26(3) . . . . . . . . . . . . . . . . . . . . . . . . 329
Ombudsman Act 1974 . . . . . . . . . . . . . 468 s 76. . . . . . . . . . . . . . . . . . . . . . . . . . . 338
s 187. . . . . . . . . . . . . . . . . . . . . . . . . . 264
s 222. . . . . . . . . . . . . . . . . . . . . . 337, 338
Private Hospitals and Day
Procedure Centres Act 1988 . . . . . 395
Public Health Act Emergency Operations Act 1973. . . . . 109
1991 . . . . . . . . . . . . . . 131, 393, 394, 415
s 11. . . . . . . . . . . . . . . . . . . . . . . 131, 393
Health and Community Services
s 11(1), (2) . . . . . . . . . . . . . . . . . . . . . 415
Complaints Act 1998 . . . . . . . . . . . 463
s 12(1) . . . . . . . . . . . . . . . . . . . . 131, 393
s 12(2) . . . . . . . . . . . . . . . . . . . . . . . . 393 Human Tissue Transplant
s 13. . . . . . . . . . . . . . . . . . . . . . . 131, 393 Act 1978 . . . . . . . . . . . . . . . . . . 109, 421
s 13(1)–(4) . . . . . . . . . . . . . . . . . . . . . 415 ss 4, 5 . . . . . . . . . . . . . . . . . . . . . . . . . 433
s 14. . . . . . . . . . . . . . . . . . . . . . . . . . . 395 ss 6–10 . . . . . . . . . . . . . . . . . . . . . . . . 434
s 14(1), (2), (2A), (3). . . . . . . . . . . . . 394 ss 11–13 . . . . . . . . . . . . . . . . . . . . . . . 436
ss 16(1), 17 . . . . . . . . . . . . . . . . . . . . 394 ss 14, 15 . . . . . . . . . . . . . . . . . . . . . . . 440
ss 17(1), 22, 23(1)–(5). . . . . . . . . . . . 395 ss 17–23 . . . . . . . . . . . . . . . . . . . . . . . 437
s 24(1) . . . . . . . . . . . . . . . . . . . . . . . . 396
s 24(5) . . . . . . . . . . . . . . . . . . . . . . . . 395
s 25(1), (2), (4). . . . . . . . . . . . . . . . . . 396 Natural Death Act 1988 . . . . . . . . . . . . 312
s 26. . . . . . . . . . . . . . . . . . . . . . . . . . . 396 ss 3–6 . . . . . . . . . . . . . . . . . . . . . . . . . 312
s 27. . . . . . . . . . . . . . . . . . . . . . . 395, 397 ss 6, 7 . . . . . . . . . . . . . . . . . . . . . . . . . 313
s 28. . . . . . . . . . . . . . . . . . . . . . . . . . . 397 Notifiable Diseases Act
s 29. . . . . . . . . . . . . . . . . . . . . . . 397, 398 1981 . . . . . . . . . . . . . . . . . . 384, 393, 412
ss 29(1)–(3), 30, 31 . . . . . . . . . . . . . . 397 ss 5, 10 . . . . . . . . . . . . . . . . . . . . . . . . 393
s 33. . . . . . . . . . . . . . . . . . . . . . . 397, 398 s 26A(2)(a) . . . . . . . . . . . . . . . . . . . . 438
ss 34(1), 35(1)–(4), 36. . . . . . . . . . . . 398 Sched 3 . . . . . . . . . . . . . . . . . . . . . . . 413
s 39. . . . . . . . . . . . . . . . . . . . . . . . . . . 396 Sched 6 . . . . . . . . . . . . . . . . . . . . . . . 436
s 41. . . . . . . . . . . . . . . . . . . . . . . . . . . 398
Notifiable Diseases (Amendment)
s 69. . . . . . . . . . . . . . . . . . . . . . . 394, 395
Act 1985 . . . . . . . . . . . . . . . . . . . . . . 413
s 79(1) . . . . . . . . . . . . . . . . . . . . . . . . 415
s 5. . . . . . . . . . . . . . . . . . . . . . . . . . . . 413
Sched 1 . . . . . . . . . . . . . . . 384, 394, 415
s 7. . . . . . . . . . . . . . . . . . . . . . . . . . . . 414
Sched 3 . . . . . . . . . . . . . . . . . . . 394, 415
s 9. . . . . . . . . . . . . . . . . . . . . . . . 413, 414
Public Health Regulations s 10. . . . . . . . . . . . . . . . . . . . . . . . . . . 414
1991 . . . . . . . . . . . . . . . . . . . . . . 393, 394 ss 11–13. . . . . . . . . . . . . . . . . . . 413, 414
reg 4. . . . . . . . . . . . . . . . . . . . . . 131, 393 s 14. . . . . . . . . . . . . . . . . . . . . . . . . . . 413
regs 7(1), 81(b) . . . . . . . . . . . . . . . . . 395 s 15. . . . . . . . . . . . . . . . . . . . . . . 413, 414
Public Health (Scheduled ss 17, 18 . . . . . . . . . . . . . . . . . . . . . . . 413
Medical Condition) ss 19, 20, 38(2), (3) . . . . . . . . . . . . . . 414
Regulation 1991. . . . . . . . . . . . 394, 415
Public Hospitals Act 1929. . . . . . . . . . . 395

xxv
 Medical Law

Rights of the Terminally Ill s 48(2), (3), (5), (7) . . . . . . . . . . . . . . 416

Act 1995 . . . . . . . . . . . . . . . . . . 323, 330 s 54(5) . . . . . . . . . . . . . . . . . . . . . . . . 375
s 3. . . . . . . . . . . . . . . . . . . . . . . . 323, 324 s 100A . . . . . . . . . . . . . . . . . . . . . . . . 266
ss 4–7 . . . . . . . . . . . . . . . . . . . . . . . . . 324 ss 176, 177. . . . . . . . . . . . . . . . . . . . . 416
s 7. . . . . . . . . . . . . . . . . . . . . . . . 325, 326 Health Rights Commission
s 7(1)(c) . . . . . . . . . . . . . . . . . . . 327, 328 Act 1991 . . . . . . . . . . . . . . 449, 450, 453
ss 7(4), 8–11 . . . . . . . . . . . . . . . . . . . 327 457, 468, 469
ss 12–14 . . . . . . . . . . . . . . . . . . . . . . . 328 s 3(1) . . . . . . . . . . . . . . . . . . . . . 450, 453
ss 15–20 . . . . . . . . . . . . . . . . . . . . . . . 329 ss 37(1), 38 . . . . . . . . . . . . . . . . . . . . 456
s 20(2)–(4) . . . . . . . . . . . . . . . . . . . . . 330 s 39(2), (3) . . . . . . . . . . . . . . . . . . . . . 457
s 39(3)(a), (b) . . . . . . . . . . . . . . . . . . 459
Queensland s 39(3)(c) . . . . . . . . . . . . . . . . . . 460, 461
s 39(3)(d). . . . . . . . . . . . . . . . . . . . . . 460
Coroners Act 1958–1984 . . . . . . . . . . . . 374 s 39(3)(e)–(g) . . . . . . . . . . . . . . . . . . 461
s 13. . . . . . . . . . . . . . . . . . . . . . . . . . . 375
ss 18(6)(ii), 29(4)(a) . . . . . . . . . . . . . 374 Health Services Act 1991—
s 1.6(a) . . . . . . . . . . . . . . . . . . . . . . . . 457
Criminal Code 1899 . . . . . . . 263, 268, 282, s 3.18(2)(a) . . . . . . . . . . . . . . . . . . . . 458
285, 288 s 5.1 . . . . . . . . . . . . . . . . . . . . . . . . . . 336
s 24. . . . . . . . . . . . . . . . . . . . . . . 285, 286
s 25. . . . . . . . . . . . . . . . . . . . . . . . . . . 285 Hospitals Act—
s 224. . . . . . . . . . . . . . . . . . 283, 284, 286 ss 12, 13 . . . . . . . . . . . . . . . . . . . . . . . 371
ss 245, 246. . . . . . . . . . . . . . . . . . . . . 263 s 44. . . . . . . . . . . . . . . . . . . . . . . . . . . 367
s 282 . . . . . . . 265–68, 282–86, 288, 289
s 288. . . . . . . . . . . . . . . . . . 264, 266, 289
Intellectually Disabled
s 289. . . . . . . . . . . . . . . . . . . . . . . . . . 288
Citizens Act 1985 . . . . . . 459, 469, 470
s 313 . . . . . . . . . . . . . 283, 285, 288, 289
s 320. . . . . . . . . . . . . . . . . . . . . . . . . . 264
s 321. . . . . . . . . . . . . . . . . . . . . . . . . . 288 Justices Act 1886. . . . . . . . . . . . . . . . . . . 416
s 323. . . . . . . . . . . . . . . . . . . . . . . . . . 264
ss 343, 343A . . . . . . . . . . . . . . . . . . . 263
Medical Act 1939–1984—
s 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . 269
Disability Services Act 1992 . . . . . 459, 461 s 35. . . . . . . . . . . . . . . . . . . . . . . . . . . 375
Medicare Agreement Act . . . . . . . . . . . 459
Health Act 1937–1984. . . . . . . . . . 335, 376, Mental Health Services
398, 415 Act 1974–1984 . . . . . . . . . . . . . . . . . 376
s 30. . . . . . . . . . . . . . . . . . . . . . . . . . . 375 s 2(c)(ii) . . . . . . . . . . . . . . . . . . . . . . . 377
s 32A . . . . . . . . . . . . . . . . . . . . . . . . . 399 s 17(2) . . . . . . . . . . . . . . . . . . . . . . . . 373
s 32A(1). . . . . . . . . . . . . . . . . . . 384, 398
s 32A(2)–(5), (8) . . . . . . . . . . . . . . . . 399
s 32B . . . . . . . . . . . . . . . . . . . . . . . . . 400 National Health Service
s 35. . . . . . . . . . . . . . . . . . . . . . . . . . . 399 (Family Planning)
s 36. . . . . . . . . . . . . . . . . . . . . . . . . . . 400 Amendment Act 1972 . . . . . . . . . . 267
s 36(1)–(3) . . . . . . . . . . . . . . . . . . . . . 399
s 36(4)–(6) . . . . . . . . . . . . . . . . . . . . . 400
s 37. . . . . . . . . . . . . . . . . . . . . . . 399, 400 Pharmacy Act 1976—
ss 38, 39, 47(1) . . . . . . . . . . . . . . . . . 400 s 27. . . . . . . . . . . . . . . . . . . . . . . . . . . 458
s 47(3) . . . . . . . . . . . . . . . . . . . . . . . . 401

xxvi
 Table of Legislation

Traffic Act 1949–1984 . . . . . . . . . . 374, 375 Nurses Act 1984—

ss 33, 41 . . . . . . . . . . . . . . . . . . . . . . . 374 s 41. . . . . . . . . . . . . . . . . . . . . . . . . . . 477
s 43. . . . . . . . . . . . . . . . . . . . . . . . . . . 375
Transplantation and Public and Environmental
Anatomy Act 1979 . . . . . 109, 267, 421 Health Act 1987 . . . 336, 384, 401, 416
ss 4, 6 . . . . . . . . . . . . . . . . . . . . . . . . . 433 ss 30(1), 31(1)–(5). . . . . . . . . . . . . . . 401
ss 8–12 . . . . . . . . . . . . . . . . . . . . . . . . 434 s 32(1)–(4), (6), (7) . . . . . . . . . . . . . . 401
ss 12A–12E . . . . . . . . . . . . . . . . . . . . 435 ss 33(1)–(3), (5), 34. . . . . . . . . . . . . . 402
ss 13–15 . . . . . . . . . . . . . . . . . . . . . . . 436 s 36(1)–(3), (7), (9) . . . . . . . . . . . . . . 402
s 20. . . . . . . . . . . . . . . . . . . . . . . . . . . 440 s 37(1) . . . . . . . . . . . . . . . . . . . . . . . . 416
ss 22–25 . . . . . . . . . . . . . . . . . . . . . . . 437 s 38. . . . . . . . . . . . . . . . . . . . . . . . . . . 402
ss 31–39 . . . . . . . . . . . . . . . . . . . . . . . 441 s 45(1)–(3) . . . . . . . . . . . . . . . . . . . . . 416
ss 40–44 . . . . . . . . . . . . . . . . . . . . . . . 432
s 45. . . . . . . . . . . . . . . . . . . . . . . . . . . 437
s 48A . . . . . . . . . . . . . . . . . . . . . . . . . 438 Supported Residential Facilities
Act 1992 . . . . . . . . . . . . . . . . . . 336, 462
Southern Australia

Blood Contaminants Act 1985— Transplantation and

ss 4, 5 . . . . . . . . . . . . . . . . . . . . . . . . . 438 Anatomy Act 1983 . . . . . . . . . 109, 421
ss 5, 6 . . . . . . . . . . . . . . . . . . . . . . . . . 433
s 7. . . . . . . . . . . . . . . . . . . . . . . . . . . . 435
Consent to Medical Treatment ss 7–10 . . . . . . . . . . . . . . . . . . . . . . . . 434
and Palliative Care ss 11–14 . . . . . . . . . . . . . . . . . . . . . . . 435
Act 1995 . . . . . . . . . . . . . . . 87, 101, 315 ss 15–17 . . . . . . . . . . . . . . . . . . . . . . . 436
s 6. . . . . . . . . . . . . . . . . . . . . . . . . 87, 101 ss 18, 19 . . . . . . . . . . . . . . . . . . . . . . . 440
s 7. . . . . . . . . . . . . . . . . . . . . . . . . . . . 315 ss 21–24 . . . . . . . . . . . . . . . . . . . . . . . 437
s 8. . . . . . . . . . . . . . . . . . . . . . . . 315, 316 s 24(1)(b) . . . . . . . . . . . . . . . . . . . . . . 438
s 9. . . . . . . . . . . . . . . . . . . . . . . . . . . . 317 ss 29–34 . . . . . . . . . . . . . . . . . . . . . . . 441
s 10. . . . . . . . . . . . . . . . . . . . . . . 317, 318 s 35. . . . . . . . . . . . . . . . . . . . . . . . . . . 432
s 11. . . . . . . . . . . . . . . . . . . . . . . . . . . 318
s 12. . . . . . . . . . . . . . . . . . . . . . . . 87, 101 Tasmania
s 13(1)–(3) . . . . . . . . . . . . . . . . . . . . . 101
s 13(5) . . . . . . . . . . . . . . . . . . . . . . . . 440 Anatomy Act 1964—
s 17(2) . . . . . . . . . . . . . . . . . . . . . . . . 301 ss 3–9 . . . . . . . . . . . . . . . . . . . . . . . . . 441
Sched 1 . . . . . . . . . . . . . . . . . . . . . . . 316 ss 12–20 . . . . . . . . . . . . . . . . . . . . . . . 441
Sched 2 . . . . . . . . . . . . . . . . . . . . . . . 315
Criminal Law Consolidation
Blood Transfusion (Limitation
Act 1935 . . . . . . . . . . . . . . . . . . . . . . 416
of Liability) Act 1986—
ss 4, 5 . . . . . . . . . . . . . . . . . . . . . . . . . 438
Death Definition Act 1983—
s 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . 437
Criminal Code Act 1924 . . . . 264, 282, 285
s 51. . . . . . . . . . . . . . . . . . . . . . . 268, 286
Health Commission Act 1976 . . . . . . . 335 ss 149, 152. . . . . . . . . . . . . . . . . . . . . 265
s 64d . . . . . . . . . . . . . . . . . . . . . . . . . 336 s 182. . . . . . . . . . . . . . . . . . . . . . . . . . 264
s 184. . . . . . . . . . . . . . . . . . . . . . . . . . 265

xxvii
 Medical Law

Health Complaints Act 1995 . . . . . . . . 462 s 121(7A). . . . . . . . . . . . . . . . . . . . . . 408

HIV/AIDS Preventive Measures s 121(9)–(15) . . . . . . . . . . . . . . . . . . . 405
Act 1993 . . . . . . . . . . . . . . . . . . . . . . 419 s 122(1)–(8) . . . . . . . . . . . . . . . . . . . . 406
s 8(3) . . . . . . . . . . . . . . . . . . . . . . . . . 438 s 123. . . . . . . . . . . . . . . . . . . . . . . . . . 407
ss 123(3), (4), 124, 126 . . . . . . . . . . . 408
Human Tissue Act 1985 . . . . . . . . 109, 421 s 127. . . . . . . . . . . . . . . . . . . . . . . . . . 393
ss 3, 4 . . . . . . . . . . . . . . . . . . . . . . . . . 433 ss 127(1), (2), 128 . . . . . . . . . . . . . . . 408
s 5. . . . . . . . . . . . . . . . . . . . . . . . . . . . 435 s 130(2)–(7) . . . . . . . . . . . . . . . . . . . . 404
ss 6–10 . . . . . . . . . . . . . . . . . . . . . . . . 434 s 137(4) . . . . . . . . . . . . . . . . . . . . . . . 408
ss 10–13 . . . . . . . . . . . . . . . . . . . . . . . 435 ss 444, 445 . . . . . . . . . . . . . . . . . . . . 417
ss 14–17 . . . . . . . . . . . . . . . . . . . . . . . 436
ss 18–21 . . . . . . . . . . . . . . . . . . . . . . . 440 Health (Infectious Diseases)
ss 23–26 . . . . . . . . . . . . . . . . . . . . . . . 437 Act 1991 . . . . . . . . . . . . . . . . . . . . . . 403
s 27. . . . . . . . . . . . . . . . . . . . . . . . . . . 432 Health (Infectious Diseases)
s 27A . . . . . . . . . . . . . . . . . . . . . . . . . 437 Regulations 1990. . . . . . . 384, 403, 416
reg 7. . . . . . . . . . . . . . . . . . . . . . . . . . 403
reg 14(1)(c) . . . . . . . . . . . . . . . . . . . . 408
Public Health (Notifiable Diseases) Sched 6 . . . . . . . . . . . . . . . . . . . . . . . 438
Regulations 1967–89. . . . . . . . . . . . 384
Health Services Act 1988 . . . . . . . . . . . 336
Health Services (Conciliation
State Service Act 1984— and Review) Act 1987 . . . 448, 463–65
Pt IX. . . . . . . . . . . . . . . . . . . . . . . . . . 336 s 19(6) . . . . . . . . . . . . . . . . . . . . . . . . 464
Human Tissue Act 1982 . . . . 109, 421, 433
Victoria
ss 5–12 . . . . . . . . . . . . . . . . . . . . . . . . 434
Crimes Act 1958 . . . . . . . . 71, 284, 303, 308 s 5. . . . . . . . . . . . . . . . . . . . . . . . . . . . 435
s 2A . . . . . . . . . . . . . . . . . . . . . . . . . . . 71 ss 10, 11 . . . . . . . . . . . . . . . . . . . . . . . 436
s 10. . . . . . . . . . . . . . . . . . . . . . . . . . . 275 ss 13–17 . . . . . . . . . . . . . . . . . . . . . . . 435
s 65. . . . . . . . . . . . . . . . . . . 274, 275, 281 s 16. . . . . . . . . . . . . . . . . . . . . . . . . . . 436
ss 20–24 . . . . . . . . . . . . . . . . . . . . . . . 440
Crimes (Sexual Offences) ss 25–27 . . . . . . . . . . . . . . . . . . . . . . . 437
Act 1980 . . . . . . . . . . . . . . . . . . . . . . . 71 s 25(b) . . . . . . . . . . . . . . . . . . . . . . . . 438
ss 28–37 . . . . . . . . . . . . . . . . . . . . . . . 441
ss 38–40 . . . . . . . . . . . . . . . . . . . . . . . 432
Guardianship and Administration
s 41. . . . . . . . . . . . . . . . . . . . . . . . . . . 437
Act—
ss 3, 4, 19, 20(3), 32 . . . . . . . . . . . . . 107
s 33. . . . . . . . . . . . . . . . . . . . . . . 107, 108 Magistrates’ Courts Act 1989—
s 26(4) . . . . . . . . . . . . . . . . . . . . . . . . 417
Health Act 1958 . . . . . . . . . . . . . . . 403, 416 Medical Treatment
ss 3, 118 . . . . . . . . . . . . . . . . . . . . . . . 406 Act 1988 . . . . . . . . . . . . . . 106, 310, 318
s 120. . . . . . . . . . . . . . . . . . . . . . . . . . 416 s 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . 269
ss 120A(1)–(4), 120B . . . . . . . . . . . . 407 ss 3–5 . . . . . . . . . . . . . . . . . . . . . . . . . 310
ss 120C(1), (3), (4), 120D(1) . . . . . . 407 s 5. . . . . . . . . . . . . . . . . . . . . . . . . . . . 311
s 121. . . . . . . . . . . . . . . . . . . . . . . . . . 406 s 5A(2) . . . . . . . . . . . . . . . . . . . . . . . . 107
s 121(1), (2) . . . . . . . . . . . . . . . . . . . . 404 ss 6–9 . . . . . . . . . . . . . . . . . . . . . . . . . 311
s 121(2)–(7) . . . . . . . . . . . . . . . . . . . . 405 Mental Health Act 1986 . . . . . . . . . . . . 336

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 Table of Legislation

Western Australia Health – Infectious Diseases

Order 1991 . . . . . . . . . . . . . . . . 408, 417
Acts Amendment (Abortion)
Health Services (Conciliation
Act 1998 . . . . . . . . . . . . . . . . . . . . . . 277
and Review) Act 1995 . . . . . . . . . . 463
Human Tissue and Transplant
Blood and Tissue (Transmissible Act 1982 . . . . . . . . . . . . . . . . . . 109, 421
Disease) Regulations 1985— ss 3, 4 . . . . . . . . . . . . . . . . . . . . . . . . . 433
regs 5(1), 6(1), 9(1), 10(1) . . . . . . . . 438 ss 6–10 . . . . . . . . . . . . . . . . . . . . . . . . 434
ss 15–17 . . . . . . . . . . . . . . . . . . . . . . . 436
ss 18–21 . . . . . . . . . . . . . . . . . . . . . . . 440
Children’s Court of Western ss 22–24 . . . . . . . . . . . . . . . . . . . . . . . 437
Australia Act 1988 . . . . . . . . . . . . . 277 s 24(1)(b), (c). . . . . . . . . . . . . . . . . . . 438
Criminal Code 1913. . . . . . . . 265, 277, 282 s 28. . . . . . . . . . . . . . . . . . . . . . . . . . . 441
ss 199(1), 200 . . . . . . . . . . . . . . . . . . 277 ss 29–30 . . . . . . . . . . . . . . . . . . . . . . . 432
s 259. . . . . . . . . . . . . . . . . . . . . . . . . . 265

Infectious Diseases (Inspection

Dangerous Infectious Diseases of Persons) Regulations . . . . . . . . . 408
Order 1983 . . . . . . . . . . . . . . . . . . . . 384 Infectious Diseases Order 1983 . . . . . . 384

Guardianship and Administration Medical Act 1984 . . . . . . . . . . . . . . . . . . 479

Act 1990— s 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . 269
s 43(4) . . . . . . . . . . . . . . . . . . . . . . . . 278
Canada
Health Act 191 . . . . . . . . 277, 408, 409, 417
Criminal Code . . . . . . . . . . . . . . 68, 74, 285
s 251(5), (6), (8). . . . . . . . . . . . . . . . . 409
ss 251(17a), 253, 260, 261 . . . . . . . . 410
ss 263(1), (2), 264 . . . . . . . . . . . . . . . 410
New Zealand
s 264(1) . . . . . . . . . . . . . . . . . . . . . . . 417
New Zealand Crimes Act 1961—
ss 264(1)(c), 265 . . . . . . . . . . . . . . . . 410
s 61A . . . . . . . . . . . . . . . . . . . . . . . . . 268
s 267. . . . . . . . . . . . . . . . . . . . . . 410, 417
s 268. . . . . . . . . . . . . . . . . . . . . . . . . . 411
United Kingdom
s 276(1) . . . . . . . . . . . . . . . . . . . . . . . 409
s 276(3) . . . . . . . . . . . . . . . . . . . . . . . 411
Abortion Act 1967 . . . . . . . . . . . . . . . . . 424
s 276(5) . . . . . . . . . . . . . . . . . . . . . . . 409
s 276(6) . . . . . . . . . . . . . . . . . . . . . . . 411
s 279. . . . . . . . . . . . . . . . . . . . . . 411, 417 English Draft Code . . . . . . . . . . . . 267, 285
s 285. . . . . . . . . . . . . . . . . . . . . . 411, 418 ss 61, 61A . . . . . . . . . . . . . . . . . . . . . 267
ss 287(1), 289 . . . . . . . . . . . . . . . . . . 409 s 68. . . . . . . . . . . . . . . . . . . . . . . . . . . 268
s 334. . . . . . . . . . . . . . . . . . . . . . . . . . 277
s 334(7)–(9) . . . . . . . . . . . . . . . . . . . . 278
ss 358, 362. . . . . . . . . . . . . . . . . . . . . 418 Infant Life (Preservation)
Health – Dangerous Infectious Act 1929 . . . . . . . . . . . . . . . . . . . . . . 275
Diseases Order 1991 . . . . . . . . 408, 417 s 1(1) . . . . . . . . . . . . . . . . . . . . . . . . . 284

xxix
 Medical Law

Judicature Acts 1873–75 . . . . . . . . . . . . 427 Road Traffic Act 1972 . . . . . . . . . . 351, 352
s 168. . . . . . . . . . . . . . . . . . . . . . . . . . 350
s 168(2)(b) . . . . . . . . . . . . . . . . . 351, 352
Medical Act 1983—
s 35. . . . . . . . . . . . . . . . . . . . . . . . . . . 344 United States of America
Mental Health Act 1983—
s 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86 Californian Penal Code. . . . . . . . . . . . . . 77
s 3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85 Constitution . . . . . . . . . . . . . . . . . . . . . . . 27
s 76. . . . . . . . . . . . . . . . . . . . . . . . . . . 344

National Health Service

(General Medical Services)
Regulations 1992 . . . . . . . . . . . . . . . 193

xxx
 CHAPTER 1

PRINCIPLES OF MEDICAL LAW

Hope, RA, ‘The birth of medical law’ (1991) 11 No 2 OJLS 247

After an extensive and somewhat uncertain gestation period, a new subject has
been born; its name is Medical Law and its birthweight is well above average. The
question is: who are its parents and was the birth assisted?
From the evidence of many recently published books the parents are, on the one
hand, the rapid advances which have taken place in medical technology and, on
the other, social changes putting increasing value on patient autonomy. The
importance of these developments and the role they are playing are openly
discussed. The birth, however, has been assisted, although this is not talked about
in public, by that age-old conflict: the battle of the professions. Doctors and
lawyers are fighting over territory and each claims to have the same ‘god’ on its
side: the good of the patients.

Dickens, B, ‘Medical law: speciality or generality?’, in Medicine and The Law,

1993, Aldershot: Dartmouth, pp xv–xvii
It must be enquired whether medical law, sometimes flattering its intellectual
pretensions through the description ‘medical jurisprudence’, is a truly discrete and
coherent body of legal knowledge, or whether it is a somewhat arbitrarily drawn
collection of principles of the law of torts, contracts, crime, family relations,
property and, for instance, products liability, that is applied to areas of medical
origin or health care concern …
What distinguishes medical lawyers from others is not so much their command of
general law, but their familiarity with medical practice, research and
developments, how hospitals are run and their different employees interact, and
how health care services are organised, delivered and funded. In addition, they are
frequently familiar with bioethical language, priorities and sensitivities.
Medical lawyers act at the interface of medicine and law, interpreting medical
issues to other lawyers and the law to physicians, related health professionals,
health facility administrators and government officials. [In addition to advising on
statutes and relevant court judgments] medical lawyers are … required to offer
explanations of the role of law in society that transcend individual judgments or
legislated provisions – that is, that transcend separate ‘laws’ – and address ‘the
law’ in philosophical or jurisprudential terms. Medical lawyers are not necessarily
more jurisprudential than others, but are perhaps more likely than many others
who deal with non-lawyers to face intelligent, well-informed questions from
professionally engaged, sceptical and occasionally resentful questioners who
probe the theoretical foundations underlying particular details or manifestations of
legal power or direction.
Medical law in Australia is a morass of statutory enactments and judge-made
law. It may only readily be understood when placed in its context. In this
chapter we will examine that context.

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If we were to establish a system of medical laws afresh, we would need some

guiding principles. Some of these principles would be relatively
straightforward. For example, we might note that any system of laws which
sought to regulate the interaction of health care practitioners should do so in a
way that did not unduly restrict the application of medical knowledge when an
application of the doctor’s expertise would benefit a patient. We might like to
suggest that the law should apply equally to all practitioners and all patients.
The law should respect, in the case of there being a number of different
treatment options, the rights of patients to choose their preferred treatments. It
should allow patients harmed at the hands of incompetent practitioners some
recompense. Expressed in this way, the underlying principles guiding the
framing of medical laws seem clear.
It is equally clear, though, that medical laws must be more complex than
this. They must somehow deal with differences of opinion between practitioner
and practitioner, as well as between practitioner and patient. They must ‘fit in’
with the increasingly complex nature of Australia’s Federal State and with an
age of rapid technological advance and differing moral standards. Should the
law allow doctors to engage in ‘physician-assisted suicide’ (euthanasia)? Should
the law permit doctors to prescribe the contraceptive pill for a 14 year old girl,
without first seeking the permission of the girl’s parents? Should the law permit
a lesbian woman to join an in vitro fertilisation program or a 50 year old mother
to bear her infertile daughter’s baby for her daughter? All of these questions
confront the modern medical lawyer.
Although Hope and Dickens might differ in their definition of medical law,
both emphasise the importance of placing medical law in its context (especially
the philosophical aspects of such context).
Underpinning the operation of various laws regulating medical practice in
Australia are competing principles of the philosophy of health care referred to
as bioethics. Once competing bioethical principles are brought into focus, it
becomes easier to understand both the role of the law, and the likely outcome of
any dispute between a health care practitioner and a patient.
At the same time, medical law (like any other branch of the law) operates
within the federal structure of the Australian State. Each level of government in
Australia (whether local, State or Federal) has legislative responsibility for
different types of health care.
It is beyond the scope of this work to explore either the detailed principles of
bioethics or of Australian constitutional law. (Whole books have been devoted
to each!)
In Part I of this chapter, we will look at the important conflicting bioethical
principles which operate in the health care arena. Though there are many
bioethical principles, this work will concentrate on two of the current dominant
bioethical principles in Anglo-Australia. It should be remembered, though, that
Australia is increasingly a multicultural nation. Part II examines bioethical

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principles operable in the Codes of Medical Practice emanating from China,

Japan, India and Islamic countries.
In Part III, an examination of the constitutional division of powers over
health will be undertaken. Once the scope of Commonwealth and State power in
respect of health care is defined, the broad nature of each level’s legislative
activity will be outlined.
The aim of this chapter is not to provide an exhaustive treatise as to bioethics
or constitutional law. Rather, it is to place Australian medical law in its ‘natural
setting’.

PART I: BIOETHICS
There would be no moral dilemmas if moral principles worked in straight lines
and never crossed each other [Tom Stoppard in Professional Foul].
It would not be correct to say that every moral obligation involves a legal duty; but
every legal duty is founded on a moral obligation [R v Instan [1893] 1 QB 453].
Generations of authors have expressed different opinions concerning the
underlying philosophical bases of Western medical practice. Justice, non-
maleficence (‘do no harm’), beneficence and autonomy all have featured. Two
principles consistently are referred to. These are the principles of autonomy and
beneficence.

Autonomy

Subsequent chapters of this book will be devoted to the patient’s right to choose
to have (or not to have) certain health care treatments. In law, this is referred to
as ‘the doctrine of consent’. Underpinning this doctrine is a respect for an
individual patient’s autonomy. Understanding autonomy is thus critical to
understanding the realm of health care decision making.
Autonomy adopts several guises. Beauchamp, TL and Childress, JF, in their
seminal work Principles of Biomedical Ethics, 5th edn, 2001, New York: Oxford
University Press, note that the term may refer to a person him or herself, a
person’s will or a person’s actions in society. There are two classical notions of
autonomy which deserve mention, those views on autonomy expressed by
Immanuel Kant and John Stuart Mill. Kantian and Millean notions of autonomy
are important because they not only explain what autonomy is, but why people
should respect each others’ autonomy. It should be noted at the outset that the
writings of Immanuel Kant are very complex. Books have been written on the
differing interpretations of Kant. In reading the extracts below, keep in mind the
dominant thesis of Kant’s reasoning – that every person is an end in herself and
deserves to be treated as an end in herself. Every person is to be treated as a
separate person, able to govern herself.

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Devereux, JA, 1993, ‘Competence to consent to medical treatment’,

D Phil thesis, Oxford University
(i) Kantian autonomy
Kant’s idea of autonomy can be seen most clearly in his writing on morality and
human beings as moral agents. Kant focused on the idea of the will. To will was
stated to be to decide on a particular course of action. Such a decision would be
morally good only where the maxim (the underlying reason for acting) was not
only to act in accordance with duty, but for the sake of duty. Determining
whether a person was acting for the sake of duty cannot be achieved simply by
examining the actor’s intentions or purposes. Kant noted:
Clearly an action designed to bring about a certain state of affairs may have
been done for the sake of duty, but again it may not.
Kant pointed out that although everything in nature acts in accordance with laws,
only rational beings such as humans have the ability to act in accordance with
principles or maxims. Accordingly, only beings who are capable of adopting
maxims can be moral or immoral.
A maxim was said to be moral only if it accorded with the moral law. How then
was the moral law to be understood? The morality of an action, Kant concluded,
was nothing more than conformity to law in general. A person’s actions were said
to be moral if, and only if, that person willed that his maxim should become a
universal law. This last principle has become known as the categorical imperative.
Kant postulated that ‘rational nature exists as an end in itself’. Since man
possesses a rational nature, he is thus an end in himself. It follows that the law to
the effect that a person should act in such a way that he treats each man as an end
in himself and not as a means to an end. This principle was said to be binding on
every rational will. It is important to note that these principles are deduced using
the rational nature of human beings. As such, the categorical imperative is not
only binding on man, it is rationally deducted by man and self-imposed. The
essence of Kant’s autonomy is clearly the freedom of the will. The property the
will has of being a law to itself (independently of every property belonging to the
objects of volition).
Thus, to Kant:
… to be autonomous is to govern oneself, including making one’s own
choices, in accordance with universal moral principles [Beauchamp and
Childress, above].
Kant contrasted his idea of autonomy with what he described as heteronomy.
This was the rule of self by others. This control by others could be externally or
even internally induced. Thus, heteronomy encompassed the situation where a
person acted in a certain way due to fear.
For present purposes, the idea of respecting individuals as ends in themselves, as
being able rationally to govern themselves, is relevant.
(ii) Millean autonomy
Mill’s conception of autonomy was somewhat different to (and easier to
understand!) than Kant’s.
Mill did not refer to the idea of autonomy directly. His concern was with liberty.
The focus was on a person’s thoughts or actions rather than the moral autonomy
of his will. Restrictions upon a person’s freedom of action were to be tolerated

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only where the limitations were to prevent one person’s freedom impinging upon
another’s. Consistent with Mill’s utilitarian ‘bent’, it was felt that allowing every
person the freedom to pursue own goals would maximise the benefits of all. This
was due to the fact that:
Conformity to established patterns reduces individual productivity and
creativity that, if developed, could benefit society [Beauchamp and Childress,
above, pp 60, 61].
Thus, Mill argued that:
Europe is in my judgment wholly indebted to the plurality of paths for its
progressive and many-sided development.
To Mill, the autonomous individual was the person with ‘true character’. The
person without character was controlled by influences such as family, State or
church.
‘Autonomy may thus be thought of as freedom of actions or will. The concept of
autonomy is only worthwhile to the extent that people respect one another’s
autonomy. In some respects, this respect flows implicitly from the idea that there
are separate persons. Thus, to acknowledge another is to acknowledge the
possibility of other centres of choice and intention.’ If an individual is perceived as
a self-governing moral agent, it follows as a matter of logic that no interference
with physical integrity may be tolerated without his permission.
It is in the health arena that the idea of autonomy becomes crucial. Health by
definition means freedom from mental and physical sickness. More importantly,
good health allows an individual to plan his present and future affairs. Achieving
full health or making the best of poor health, can therefore, have flow-on effects in
respect of other areas of a person’s plans. Not surprisingly then, it has been noted
that:
… given the importance of health to individuals, it is of central importance to
them that they have the capacity and the opportunity for choice in respect of
medical intervention [McLean, SAM, ‘The right to consent to medical
treatment’, in Campbell, T, Goldberg, D, McLean, SAM and Mullen, T (eds),
Human Rights: From Rhetoric to Reality, 1986, 148 at p 149, Oxford: Blackwell].

If, as is suggested above, autonomy is a central notion in the concept of health

care, how should the law treat those who are unable to exercise autonomy?
Which version of autonomy, that provided by Mill or that provided by Kant,
do you find more persuasive?

Beneficence

Devereux, JA, ‘Competence to consent to medical treatment’ (above)

The countervailing principle to autonomy is often beneficence. The moral duty of
beneficence requires medical practitioners to act so as to produce the best medical
result for their patient. That is to say, they must act so as to promote the wellbeing
of the patient. Beneficence may also involve the prevention of harm; the removal of
harm; benevolence or compassion. The idea of beneficence is the raison d’être of the

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medical profession. A medical practitioner is trained to treat, to attempt to cure

the patient.
When clinical questions are asked, the correct response will include the optimum
course of treatment, that is, that which produces the best medical result, even
though there may be an alternative which an individual patient may elect to
follow and which differs from that which is scientifically indicated. In this way,
the student at an early stage in his professional development, loses touch with the
human element (Bromberger, B, ‘Patient Participation in Decision Making: Are
Courts the Answer?’ (1983) 6 UNSWLJ 1 at 18).
This trend has gone so far that it is now claimed that ‘the medical practitioner no
longer ministers to the sick but rather treats the sickness’ (Bromberger, at 19).
What precisely does it mean to say that a practitioner should promote wellbeing
and prevent harm? In order more fully to answer this question, resort will be
made to three theorists.
(i) Hippocrates
Hippocrates, an Ancient Greek philosopher, formulated a series of principles for
medical practitioners which was designed to characterise those practitioners as a
group of committed men set apart from and above others in society. Hippocrates
saw medicine as having a moral purpose:
I will apply diatetic measures to the benefit of the sick according to my ability
and judgment; I will keep them from harm and injustice.
This moral purpose is further expanded upon in Hippocrates’ other writings.
Thus, in ‘The Art’, Hippocrates defines what he understands by the term
medicine:
In general terms, it is to do away with the sufferings of the sick, to lessen the
violence of their diseases and to refuse to treat those who are overmastered by
their diseases, realising that in such cases medicine is powerless.
Then in ‘Epidemics’, he notes, ‘As to disease, make a habit of two things – to help,
or at least do no harm.’
Thus, Hippocrates’ model of beneficence builds its account of the moral
responsibilities of the physician in terms of the moral ends of medicine. On this
basis, meaning is ascribed to the key terms of harm and good. This principal is
applied to demonstrate that the prima facie duty of the medical practitioner is to
benefit the patient, with the prevention of harm serving as a limiting factor to this
principle.
(ii) Gregory
Another account of beneficence was offered by Dr John Gregory. Dr Gregory was
Professor of Medicine at the Medical School at the University of Edinburgh. He
defined medicine as being ‘the art of preserving health, of prolonging life and of
curing diseases’. Clearly, Gregory was focusing on the wellbeing of patients. In
order to ‘tie in’ the idea of acting in the patient’s best interest with the specific
obligations and virtues, Gregory utilised Hume’s concept of ‘sympathy’. David
Hume had held that moral judgments do not rest ultimately on reason but rather
on sympathy:
Were I present at any of the more terrible operations of surgery, the heating of
the instruments, the laying of the bandages in order, the heating of the irons,

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with all the signs of anxiety and concern in the patient and assistants would
have a great effect upon my mind and excite the strongest sentiments of pity
and terror.
Sympathy manifested itself through various virtues and obligations, such as telling
the truth to a terminally ill patient and keeping a patient’s confidences.
Gregory’s theory, like Hippocrates’, rests on a moral view of medicine but is able,
using the medium of sympathy, to generate specific instances of beneficence.
(iii) Beauchamp and McCulloch – a modern formulation
Drawing upon writings (including those of Gregory and Hippocrates),
Beauchamp, TL and McCulloch, LB in their work Medical Ethics: The Moral
Responsibility of Physicians, 1984, Prentice Hall, Englewood Cliffs, at p 18 have
formulated a list of goods to be striven for and harms to be avoided.

GOODS HARMS
Health Illness
Prevention, elimination or control of disease and injury Disease
Relief from unnecessary pain and suffering Unnecessary pain or suffering
Amelioration of handicapping conditions Handicapping conditions
Prolonged life Premature death

How useful are Beauchamp and McCulloch’s list of goods versus harms?
Would all doctors in Australia agree that prolonging the life of someone who
is terminally ill and in great pain be something that ‘should be striven for’?

The conflict between autonomy and beneficence

It is possible that the notions of autonomy and beneficence can co-exist. Thus, a
patient may present at a surgery, have a diagnosis of illness suggested by a
doctor and exercise an autonomous choice to have that doctor treat her. The
doctor may exercise her clinical skills to try to ensure the wellbeing of the patient
(in accordance with the principles of beneficence).
Problems may arise, however, if the patient, in exercising her autonomy,
declines treatment and the doctor feels (in accordance with beneficence) that
treatment should be given.
Which principle should be the dominant one?
Generally speaking, where the patient is of full age and mentally competent
to agree or refuse treatment, the patient’s interest in having his or her autonomy
respected is paramount.
Examine the Australian Medical Association’s Code of Ethics reprinted
below. Determine which paragraphs are a reflection of respect for patient
autonomy, and which are reflections of the desire to ensure the best possible
medical outcome (beneficence). If there are other values being enunciated, try to
enumerate them.

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Australian Medical Association’s Code of Ethics

(revised November 1995, published February 1996)
Because of their special knowledge and expertise, doctors have a responsibility to
improve and maintain the health of their patients who, either in a vulnerable state
of illness of for the maintenance of their health, entrust themselves to medical
care.
Over the centuries, doctors have held to a body of ethical principles developed to
guide their behaviour towards patients, their professional peers and society. The
Hippocratic Oath was an early expression of such a code. These codes of ethics
encourage doctors to promote the health and wellbeing of their patients and
prohibit doctors from behaving in their own self-interest …
1 The doctor and the patient
1.1 Standards of care
(a) Practise the science and art of medicine to the best of your ability and
within the limits of your expertise.
(b) Continue self-education to improve your standard of medical care.
(c) Evaluate your patient completely and thoroughly.
(d) Maintain accurate and contemporaneous clinical records.
(e) Ensure that doctors and other health professionals who assist in the
care of your patient are qualified and competent to carry out that care.
1.2 Respect for patients
(a) Ensure that your professional conduct is above reproach.
(b) Do not exploit your patient for sexual, emotional or financial reasons.
(c) Treat your patients with compassion and with respect for their human
dignity.
1.3 Responsibilities to patients
(a) Do not deny treatment to any patient on the basis of their culture,
ethnicity, religion, political beliefs, sex, sexual orientation or the nature
of their illness.
(b) Respect your patient’s right to choose their doctor freely, to accept or
reject advice and to make their own decisions about treatment or
procedures.
(c) To help with these decisions, inform and advise your patient about the
nature of their illness and its possible consequences, the probable
cause and the available treatments, together with their likely benefits
and risks.
(d) Keep in confidence information derived from your patient, or from a
colleague regarding your patient, and divulge it only with the patient’s
permission. Exceptions may arise where the health of others is at risk
or you are required by order of a court to breach patient
confidentiality.
(e) Recommend only those diagnostic procedures necessary to assist in
the care of your patients and only that therapy necessary for their
wellbeing.

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(f) Protect the right of doctors to prescribe, and any patient to receive, any
new treatment, the demonstrated safety and efficacy of which offer
hope of saving life, re-establishing health or alleviating suffering. In all
such cases, fully inform the patient about the treatment, including the
new or unorthodox nature of the treatment, where applicable.
(g) Upon request by your patient, make available to another doctor a
report of your findings and treatment.
(h) Continue to provide services for an acutely ill patient until your
services are no longer required, or until the services of another suitably
qualified doctor have been obtained.
(i) When a personal moral judgment or religious belief alone prevents you
from recommending some form of therapy, inform your patient so that
they may seek care elsewhere.
(j) Recognise that an established relationship between doctor and patient
has a value, which you should not undermine.
(k) In non-emergency situations, where you lack the necessary knowledge,
skill, or facilities to provide care for a patient, you have an ethical
obligation to refer that patient on to a professional colleague.
(l) Be responsible when placing an appropriate value on your services, and
consider the time, skill, experience and any special circumstances
involved in the performance of that service, when determining any fee.
(m)Where possible, ensure that your patient is aware of your fees. Be
prepared to discuss fees with your patient.
(n) Do not refer patients to institutions or services in which you have a
financial interest, without full disclosure of such interest.
1.4 Clinical research
(a) Where possible, accept a responsibility to advance medical progress by
participating in properly developed research involving human subjects.
(b) Before participating in such research, ensure that responsible
independent committees appraise the scientific merit and the ethical
implications of the research.
(c) Recognise that the wellbeing of the subjects takes precedence over the
interests of science or society.
(d) Ensure that all research subjects or their agents have been fully
informed and have consented to participate in the study.
(e) Inform treating doctors of the involvement of their patients in any
research project, the nature of the project and its ethical basis.
(f) Recognise that the subjects have a right to withdraw from a study at
any time.
(g) Do not allow a patient’s refusal, at any stage, to participate in a study,
to interfere with the doctor-patient relationship or to compromise
appropriate treatment and care.
(h) Ensure that research results are first communicated to appropriate peer
groups so that a balanced view can be obtained before communication
to the public.

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1.5 Clinical teaching

(a) Pass on your professional knowledge and skills to colleagues and
students.
(b) Before embarking on any clinical teaching involving patients, explain
the nature of the teaching methods and obtain the patients’ consent.
(c) Do not allow a refusal to participate in teaching to interfere with the
doctor-patient relationship.
(d) In any teaching exercise, ensure that your patient is managed
according to the best proven diagnostic and therapeutic methods and
that your patient’s comfort and dignity are maintained at all times.
(e) Do not sexually or emotionally exploit students or colleagues under
your supervision.
1.6 The dying patient
(a) Remember the obligation to preserve life, but, where death is deemed
to be imminent and where curative or life-prolonging treatment
appears to be futile, try to ensure that death occurs with dignity and
comfort.
1.7 Transplantation
(a) If you are caring for a donor, you must provide to the donor, or their
relatives where appropriate, a full disclosure of the intent to transplant
organs, the purpose of the procedure and, in the case of a living donor,
the risks procedure.
(b) Accept that when brain death has occurred bodily functions may be
supported if some parts of the body may be used to prolong life or to
improve the health of other people.
(c) Ensure that the determination of the death of any donor is made by
doctors who are not involved with the transplant procedure nor caring
for the proposed recipient.
(d) Donor families have made an important contribution to the health of
others in very difficult circumstances. They must be offered ongoing
counselling and appropriate support.
2 The doctor and the profession
2.1 Professional conduct
(a) Build a professional reputation based on integrity and ability. Be
aware that your personal conduct may affect your reputation and that
of your profession.
(b) Refrain from making comments which needlessly damage the
reputation of a colleague, or cause a patient anxiety.
(c) Report to the appropriate body of peers any unethical or
unprofessional conduct by a colleague.
(d) Where a patient alleges sexual or misconduct by another doctor ensure
that the patient is fully informed about the appropriate steps to take to
have that complaint investigated.
(e) Accept responsibility for your personal health, both mental and
physical, because it affects your professional conduct and patient care.

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2.2 Contracts
(a) Do not enter into any contract with a colleague or organisation which
may diminish the maintenance of your patient’s autonomy, or your
own or your colleagues’ professional integrity.
2.3 Advertising
(a) Do not advertise professional services or make professional
announcements unless the chief purpose of the notice is to present
information reasonably needed by any patient or colleague to make an
informed decision about the appropriateness and availability of your
medical services.
(b) Ensure that any announcement or advertisement directed towards
patients or colleagues is demonstrably true in all respects, does not
contain any testimonial or endorsement of your clinical skills and is not
likely to bring the profession into disrepute.
(c) Avoid public endorsement of any particular commercial product or
service.
(d) Ensure that any therapeutic or diagnostic advance is described and
examined through professional channels, and, if proven beneficial, is
made available to the profession at large.
2.4 Referral to colleagues
(a) Obtain the opinion of any appropriate colleague acceptable to your
patient if diagnosis or treatment is difficult or obscure, or in response to
a reasonable request by your patient.
(b) When referring patients, make available to your colleagues all relevant
information and indicate whether or not they are to assume the
continuing care of your patients during their illness.
(c) When an opinion has been requested by a colleague, report in detail
your findings and recommendations to that doctor.
(d) Should a consultant or specialist find a condition which requires
referral of the patient to a specialist or consultant in another field, the
referral should, where possible, be made following discussion with the
patient’s general practitioner.
3 The doctor and society
(a) Strive to improve the standards and quality of medical services in the
community.
(b) Accept a share of the profession’s responsibility to society in matters
relating to the health and safety of the public, health education and
legislation affecting the health or wellbeing of the community.
(c) Use your special knowledge and skills to consider issues of resource
allocation, but remember that your primary duty is to provide your
patient with the best available care.
(d) The only facts contained in a medical certificate should be those which
you can personally verify.
(e) When giving evidence, recognise your responsibility to assist the court
in arriving at a just decision.

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(f) When providing scientific information to the public, recognise a

responsibility to give the generally held opinions of the profession in a
form that is readily understood. When presenting any personal
opinion which is contrary to the generally held opinion of the
profession, indicate that this is the case.
(g) Regardless of society’s attitudes, do not countenance, condone or
participate in the practice of torture or other forms of cruel, inhuman,
or degrading procedures, whatever the offence of which the victim of
such procedures is suspected, accused or convicted.
Now examine the nurse’s statement of ethics and try to establish which
principles embody respect for patient autonomy, and which embody medical
beneficence.
Australian Nursing Council Code of Ethics
Value Statement 1
Nurses respect persons’ individual needs, values and culture in the provision of
nursing care.
EXPLANATORY STATEMENTS
1 Nursing care for any individual or group should not be compromised because
of ethnicity, gender, spiritual values, disability, age, economic, social or health
status, or any other ground.
2 Respect for a person’s needs includes recognition of the individual’s place in a
family and community. Nurses should, therefore, facilitate the participation of
significant others in the care of the individual if, and as, the person and the
significant others wish.
3 Respect for individual needs, beliefs and values includes culturally sensitive
care, and the provision of as much comfort, dignity, privacy and alleviation of
pain and anxiety as possible.
4 Respect includes the development of confidence and trust in the relationship
between nurses and the people for whom they care.
Value Statement 2
Nurses respect the rights of persons to make informed choices in relation to their
care.
EXPLANATORY STATEMENTS
1 Individuals are entitled to make decisions related to their own welfare, based
on accurate information given by health care providers. If persons are not
present or able to speak for themselves, nurses have a role in ensuring that
someone is present to accurately represent the person’s perspective.
2 Nurses have a responsibility to inform people about the nursing care that is
available to them, and people have free choice to accept or reject such care.
Nurses respect the decisions made by each person.
3 Illness and/or other factors may compromise a person’s capacity for self-
determination. Where able, nurses need to provide such persons with the
opportunities for choice to enable them to maintain some degree of self-
direction and self-determination.

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Value Statement 3
Nurses promote and uphold the provision of quality nursing care for all people.
EXPLANATORY STATEMENTS
1 Quality nursing care includes competent care provided by appropriately
qualified individuals.
2 Promotion of quality nursing care includes valuing continuing education as a
means of maintaining and increasing knowledge and skills. Continuing
education refers to all formal and informal opportunities for education.
3 Standards of care are one measure of quality. Nurses implement procedures to
evaluate nursing practice in order to raise standards of care, and to ensure that
such standards are ethically defensible.
4 Research is necessary to the development of the profession of nursing.
Research should be conducted in a manner that is ethically defensible.
Value Statement 4
Nurses hold in confidence any information obtained in a professional capacity, and
use professional judgment in sharing such information.
EXPLANATORY STATEMENTS
1 The nurse respects persons’ rights to determine who will be provided with
their personal information and in what detail. Exceptions may be necessary in
circumstances where the life of the person or of other persons may be placed in
danger if information is not disclosed.
2 When personal information is required for teaching, research or quality
assurance procedures, care must be taken to protect the person’s anonymity
and privacy. Consent must always be obtained.
3 Nurses protect persons in their care against inadvertent breaches of privacy by
confining their verbal communications to appropriate personnel and settings,
and to professional purposes.
4 Nurses have a moral obligation to adhere to practices which limit access to
personal records (whether written or computerised) to appropriate personnel.
Value Statement 5
Nurses respect the accountability and responsibility inherent in their roles.
EXPLANATORY STATEMENTS
1 As morally independent agents, nurses have moral obligations in the provision
of nursing care.
2 Nurses participate with other health care providers in the provision of
comprehensive health care, recognising the perspective and expertise of each
team member.
3 Nurses may have personal values which may cause them to experience moral
distress in relation to participating in certain procedures. Nurses have a moral
right to refuse to participate in procedures which would violate their reasoned
moral conscience (that is, they are entitled to conscientious objection).
Value Statement 6
Nurses value the promotion of an ecological, social and economic environment
which supports and sustains health and wellbeing.

13
 Medical Law

EXPLANATORY STATEMENTS
1 Nursing includes involvement in the detection of ill effects of the environment
on the health of persons, the ill effects of human activities on the natural
environment, and assisting communities in their actions on environmental
health problems aimed at minimising these effects.
2 Nurses value participation in the development, implementation and
monitoring of policies and procedures which promote safe and efficient use of
resources.
3 Nurses acknowledge that the social environment in which persons reside has
an impact on their health, and in collaboration with other health professionals
and consumers, initiate and support action to meet the health and social needs
of the public.
Special ethical considerations apply in respect of research involving humans:
see generally NHMRC National Statement on Ethical Conduct in Research
Involving Humans.

PART II: NON-WESTERN MEDICAL PHILOSOPHIES

A common assumption of Anglophiles is that the British Empire brought

civilisation to all parts of the world. Such a gross oversimplification belies the
fact that many other civilisations possess highly developed ethical theories,
especially in respect of the healing professions.
As Australia becomes more multicultural, exposure to these non-Western
views of medical ethics become increasingly important, especially as some of
these views may one day reflect Australian medical ethics.
What follows is a series of brief extracts outlining bioethical principles
which have emerged in Islamic countries, in India, China and Japan. In reading
the extracts, try to focus your attention on three matters:
1 Which foreign bioethical principles mirror those found in Australian
bioethics?
2 Which foreign bioethical principles strike you as being somehow different?
3 Which principles of foreign bioethics would be likely to cause difficulty, in
the event that an Australian medical practitioner were to treat someone
more familiar with foreign bioethics (or if a foreign medical practitioner
were to treat someone used to Australian bioethics)?
Veatch, RM (ed), Cross Cultural Perspectives in Medical Ethics,
1989, p 120, Boston: Jones and Bartlett
Islam offers another alternative to Hippocratic medical ethics or the liberal ethics
of western political philosophy. The style of contemporary Muslim writings on
medical ethics is quite different from the secular medical ethical literature of
either the East or West. It is much more explicitly religious in tone. Much more so
even than the medical ethical writings of most contemporary religious
commentators on medical ethical issues. It works very closely with the Quranic
texts that it considers relevant to medical decision-making. In doing so, it makes

14
Exploring the Variety of Random
Documents with Different Content
 CHAPTER XIV.
ALLAN MAKES A DISCOVERY

During all this time, Allan had been taking his trick of track-
walking with the other men on Section Twenty-one. Jack had
arranged it so that the boy’s trip over the road was made in the
early morning, from four o’clock to seven, when, in his opinion, there
was the minimum of danger. For Jack still feared Dan Nolan,
although that rascal had not been seen in the neighbourhood for
months. But Jack had an uneasy feeling that Nolan was still plotting
mischief, that he was still watching his opportunity to do Allan an
injury.
The boy himself, confident in his growing manhood, laughed at
these fears.
“Nolan has cleared out for good,” he said to Jack. “He’s gone
somewhere where he’s not known, and has got another job. We’ll
never see him again.”
But Jack shook his head stubbornly.
“I know better,” he said. “Mebbe he’s gone away for awhile, but
he’ll come back ag’in, an’, if he ever gits a good chance t’ hit y’ from
behind, he’ll take it. I’ve got a sort of idee that Nolan’s at th’ bottom
of most of th’ devilment that’s been goin’ on on this here road. Th’
tramps would ’a’ cleared out long ago if there hadn’t been somebody
back of them urgin’ ’em on.”
“Oh, come, Jack,” protested Allan, “you’ve let that idea get such a
hold on you that you can’t shake it off.”
“Anyway,” said Jack, “I want you t’ keep your eyes about you
when you’re out there by yourself. An’ you’re t’ carry that club I
made fer you, an’ t’ use it, too, if Nolan ever comes near enough for
you t’ git a good lick at him.”
 Allan laughed again, but he carried the club with him,
nevertheless, more to quiet Jack’s fears and Mary’s than because he
thought he would ever need it. Jack had gone down to the carpenter
shop the first day the order to patrol the track was posted, and had
selected a piece of seasoned hickory, which he had fashioned into an
effective weapon. Most of the other section-men were similarly
armed, and were prepared to meet force with force.
But Jack’s fears were to be verified in an unexpected way a few
days later. One of the detectives employed by the road had
succeeded in disguising himself as a tramp so effectively that he was
admitted to their councils, and one night a force of men was
gathered at headquarters for an expedition of which none of them
knew the destination. It happened to be Jack’s trick, and, when he
reported for duty, the train-master called him to one side.
“Welsh,” he said, “we’re going on a little expedition to-night which
promises some fun. I thought maybe you’d like that boy of yours to
go along,—you seem to want to get him in on everything going.”
“What is it, Mister Schofield?” Jack asked. “Anything dangerous?”
“No,” answered the train-master, “I don’t think there’ll be any real
danger, but there may be some excitement. I want you to go and
you’d better bring the boy.”
“All right, sir,” said Jack, resolving, however, to keep the boy close
to himself.
A caller was sent after Allan, who appeared at the end of a few
minutes, his eyes big with excitement.
“What is it?” he asked, as he saw the men grouped together,
talking in low tones. “Another wreck?”
“No,” said Jack; “it ain’t a wreck. I don’t know what it is. It’s got
something t’ do with th’ tramps, I think. Mebbe you’d better not go.”
“Of course I’ll go,” protested the boy. “I wouldn’t miss it for
anything.”
A moment later the men, of whom there were twenty, were
divided into parties of four each, and each man was given a short,
stout policeman’s club loaded with lead at the end.
 “Now, boys,” said the train-master, after the clubs had been
distributed, “I want you to remember that it’s an easy thing to kill a
man with one of those clubs, so don’t strike too hard if we get into a
row. Only, of course, don’t hesitate to defend yourselves. Now I
guess we’re ready to start.”
Each party was placed in charge of one of the road’s detectives,
and left the yards by a different route. The night was very dark, with
black clouds rolling overhead and sending down a spatter of rain
now and then, so that the men could scarcely see each other as they
walked along. The party that Jack and Allan were with followed the
railroad track as far as the river-bank; then they turned aside,
crossed the long bridge which spanned the river, and pushed their
way along a path which led to the right along the opposite bank.
It was anything but easy walking, for the path was a narrow and
uneven one, nearly overgrown by the rank underbrush along the
river, so that they had to proceed in single file, the detective in the
lead, stumbling over rocks, stepping into mudholes, with branches
slapping them in the faces, and briars catching at their clothing. At
last they came out upon an open field, which they crossed. Beyond
the field was a road, which they followed for half a mile or more,
then they struck off along another path through an open hickory
wood, and finally halted for breath at the base of a high hill.
In a few moments, the other parties came up, panting and mud-
bespattered, and the detectives and Mr. Schofield drew apart for a
little consultation.
“Now, boys,” said Mr. Schofield, in a low voice, when the
consultation was over, “I’ll tell you what we’re after so that you’ll
know what to expect. One of our men here has discovered up on
this hill the place where the ringleaders among the tramps make
their headquarters. If we can capture these ringleaders, all our
troubles with the tramps will be over. We’re going to surround the
place, and we want to capture every one of them. We must creep up
on them as quietly as we can, and then a pistol-shot will be the
signal for a rush. And, remember, we don’t want any of them to get
away!”
 A little murmur ran through the crowd, and they gripped their
clubs tighter. Jack was glad that they had not been given revolvers,
—in the darkness and confusion, such weapons would be more
dangerous to friend than foe.
They started cautiously up the hill, advancing slowly and painfully,
for there was now no vestige of a path. The uneven ground and
tangled undergrowth made progress very difficult, but they gradually
worked their way upward until they came to the edge of a little
clearing. Against a cliff of rock at one side a rude hut was built.
There was no window, but, through the chinks in the logs, they
could see that there was a light within. The men were spread out
along the edge of the clearing, and waited breathlessly for the signal
to advance.
The pistol-shot rang out, clear and sharp in the night air, and,
even as the men sprang forward, the door of the hut was thrown
open and a man’s figure appeared silhouetted against the light. He
stood an instant listening to the rush of advancing footsteps, then
slammed the door shut, and in a breath the hut was in darkness.
But that single instant was enough for both Allan and Jack Welsh
to recognize the man.
It was Dan Nolan!
In another second, they were hammering at the door, but they
found it strongly barred, and three or four minutes elapsed—minutes
that seemed like centuries—before they got the door down and
rushed over the threshold into the hut. One of the detectives opened
his dark lantern and flashed a brilliant band of light about the place,
while the men stared in astonishment.
For the hut was empty!
They lighted the lamp which stood on a box in one corner and
made a more careful examination of the place. Two or three boxes,
an old stove, a few cooking utensils, and a rude cot in one corner
comprised all the furniture, and one of the detectives, pulling aside
the largest box, which stood against the back of the hut, solved the
mystery of Nolan’s disappearance.
 A passage had been dug in the bank which formed the back of
the hut, and the detective, after flashing his dark lantern within,
crawled into it without hesitation. In a few moments, they heard the
sound of steps outside, and the detective came in again at the door.
“He’s got clear away,” he said; “as well as all the rest who were
with him. That tunnel leads off to the left and comes out the other
side of this bank.”
Mr. Schofield’s face showed his disappointment.
“It’s too bad,” he said, “that we didn’t know about that tunnel.
Then we could have placed a guard at the other end.”
“There were precious few knew about it,” said the detective who
had discovered the place. “I’ve been here half a dozen times, and
never suspected its existence.”
“Well,” said the train-master, “the only thing we can do is to go
home, I guess. We can’t hope to find a man in these woods on a
night like this.”
“You knowed that feller who opened th’ door, didn’t you, Mister
Schofield?” questioned Jack, as they left the hut.
“No,” said Mr. Schofield, quickly. “Did you?”
“Yes,” replied Jack, quietly; “it was Dan Nolan.”
“Dan Nolan!” repeated the train-master, incredulously. “Are you
sure?”
“Allan here knowed him, too,” said Jack. “It’s what I’ve been
thinkin’ all along, that Nolan was at th’ bottom of all this mischief.
He’s got t’ be a kind o’ king o’ th’ tramps, I guess.”
“Perhaps you’re right,” agreed Mr. Schofield. “I’ll put our
detectives on his trail. Maybe they can run him down, if he hasn’t
been scared away by his narrow escape to-night.”
“He’ll shift his headquarters,” said Jack, “but I don’t believe he’ll
be scared away—not till he gits what he’s after, anyway.”
“And what is that?” questioned the train-master.
“He’s after Allan there,” said Jack, in a lower tone. “An’ he’ll git
him yet, I’m afraid.”
 “Well, we’ll make it hot for him around here,” said Mr. Schofield,
and went forward to impart this information to the detectives.
All of the men were completely tired out by the long night tramp,
as well as chagrined over their ill success, but Allan was up again as
usual next morning and started off upon his tramp along the track.
“Now, be careful of yourself, darlint,” Mary cautioned him, as she
saw him off, and Allan promised to be especially alert.
There could be no doubt that it was Dan Nolan they had seen at
the door of the hut the night before, but Allan only half-believed that
Nolan still preserved his enmity toward him. Certainly, he decided, it
was not worth worrying about,—worrying never did any good. He
would be ready to meet danger as it came, but he greatly doubted if
it would ever come, at least, to himself personally.
He had grown to like this duty of patrolling the track. It had been
a pleasant duty, and an uneventful one, for at no time had he found
anything wrong, or met with unpleasant adventure of any kind. But
those long walks through the fresh, cold air, with the dawn just
tingeing the east, opened a new world to the boy. It was no longer
the hot, dusty, work-a-day world of labour, but a sweet, cool, clean
world, where joy dwelt and where a man might grow. He heard the
birds greet the sunrise with never-failing joy; he heard the cattle
lowing in the fields; even the river beside the road seemed to dance
with new life, as the sun’s rays sought it out and gilded its every
ripple. It was not a long walk—three miles out and three back—and
what an appetite for breakfast it gave him! Even these few months
had wrought a great change in him. He was browned by the sun and
hardened by toil, as has been said already; but the change was
greater than that. It was mental as well as physical. He had grown
older, and his face had gained the self-reliant look of the man who is
making his own way in the world and who is sure of himself.
Despite all this extra work, Section Twenty-one was kept in
perfect condition, and the train-master noted it, as he noted
everything else about the road.
“You’re doing good work, Welsh,” he said to Jack one day, when
he chanced to meet him in the yards.
 “I’ve got a good gang,” answered the foreman, proudly. “There’s
one o’ my men that’s too good fer section work. He ort t’ have a
better job, Mr. Schofield; one, anyway, where ther’s a chance fer
permotion—in th’ offices.”
“Yes?” and the official smiled good-naturedly. “I think I know who
you mean. I’ll keep him in mind, for we always need good men. This
extra work will soon be over, though. As soon as cold weather sets
in, the hoboes will strike for the South, and I don’t believe they’ll
ever trouble us again.”
“Mebbe not,” agreed Jack, dubiously. “But I’d be mighty glad to
hear that Dan Nolan was locked up safe somewhere. You haven’t
found any trace of him?”
“No. He seems to have disappeared completely. I believe he’s
scared out, and cold weather will rid us of all the rest.”
“Mebbe so,” said Jack; “mebbe so. Anyway, I wish cold weather’d
hurry up an’ come.”
But it seemed in no haste about coming. December opened bright
and warm, and two weeks slipped by. Although it was evident that
the tramps were becoming less numerous, and the management of
the road began to breathe more freely, still the head of the police
department did not relax his caution. He had his ear to the ground,
and, from that hidden, subterranean region of trampdom, he still
heard vague and uncertain, but no less threatening, rumblings.
It was clear that the battle was not yet won, for the petty
annoyances continued, though in an ever lessening degree, and
even in the yards the tramps or their sympathizers managed to do
much harm. A freight-train would be standing in the yards, ready for
its trip east or west; the conductor would give the signal to start, the
engineer would open his throttle, and instantly it would be
discovered that some one had drawn all the coupling-pins; but,
before the engineer could stop his engine, he had torn out all the
air-hose on the train. Or, perhaps, the train would start all right, but,
in the course of half an hour, the fireman would discover he could
not keep the steam up, no matter how hot his fire was; the pressure
would fall and fall until the train would be stalled out on the road,
and an investigation would disclose the fact that some one had
thrown a lot of soap into the tank. Then the whole system would be
tied up until another engine could be sent to the rescue to push the
train into the nearest siding. Or, perhaps, the train would be bowling
along merrily until, of a sudden, the well-trained noses of conductor
and brakemen would detect the odour of a hot box. The train would
be stopped, and it would soon be found that some one had removed
the packing from the boxes.
All of these things were provoking enough, especially since it was
evident that in almost every case the mischief had been done in the
yards under the very noses of the trainmen, although no tramps had
been seen there. Indeed, the trainmen, after wrestling with such
annoyances for a time, came to be of a temper that made it
exceedingly dangerous for a tramp to be found anywhere near
railroad property. Yet the annoyances went on, and became
gradually of a more serious nature. One night a brakeman found the
main switch at the east end of the yards spiked, and it was only by a
hair’s breadth that a serious collision was avoided. But the climax
came one morning when Bill Morrison, on the crack engine of the
road, found that some one had put sand in his boxes, and that the
journals were ground off and ruined.
A rigid investigation was ordered at once, but no clue to the
perpetrator of the mischief was discovered. Yet it seemed certain
that it could not have been done by a tramp. No tramp had been in
the yards—the yard-men were sure of that—and the officials were
forced to the unwelcome conclusion that some one whom they did
not suspect—some one who was permitted to enter the yards—some
one connected with the road, perhaps—was guilty. It was a
disquieting thought, for there was no telling what might happen
next.
And then, one morning, Allan solved the mystery. It was a little
after four o’clock and still quite dark as he passed through the yards
to start on his morning walk. A freight-train stood ready to start
east, with its great mogul of an engine puffing and blowing with
impatience. Just as Allan passed it, he saw a figure emerge from
underneath it. He thought at first it was the engineer, but, instead of
mounting to the cab, the figure slunk away into the darkness,
carefully avoiding the glare of the headlight. Then the boy saw the
conductor and engineer standing, with heads together, a little
distance away, reading their orders by the light of the conductor’s
lantern. He ran toward them.
“Mr. Spurling,” he said to the engineer, “I just saw a man come
out from under your engine.”
“You did!” and engineer and conductor, with compressed lips,
hurried back to where the engine stood. The former flashed his
torch underneath, and then straightened up with a very grim face.
“Look at that link-motion,” he said, and the conductor stooped
and looked. Then he, too, straightened up.
“It’s a good thing we didn’t get started,” he said. “I’ll go and
report it. It’s lucky for us you saw that scoundrel, my boy,” he added,
as he hurried away, and the engineer clapped Allan on the shoulder.
“Mighty lucky,” he said. “It’s a good thing there’s one man around
here who keeps his eyes open.”
But Allan, as he started away at last upon his six-mile tramp,
knew not whether to be glad or sorry. If only some one else had
passed the engine at that moment instead of him. For, as that
crouching figure slunk away through the darkness, he had
recognized it!
So he had a battle to fight on that six-mile tramp; but it was
fought and won long before the walk was ended. And when, at last,
he got back to the yards, instead of turning away toward home, he
mounted the stairs to the train-master’s office. That official was
busy, as always, with a great pile of correspondence, but he looked
up and nodded pleasantly as Allan entered.
“Good morning, West,” he said. “Want to speak to me?”
“Yes, Mr. Schofield,” answered Allan. “This morning, as I was
starting out on my trick, I saw a man come out from under Mr.
Spurling’s engine.”
The train-master nodded.
 “Yes,” he said, “I’ve got a report of it here. I’m mighty glad you
happened to come along just when you did, and had your eyes
about you.”
“I’d much rather it had been somebody else,” said Allan, “for I
knew the man, and I think it’s my duty to tell you.”
The train-master looked at him keenly.
“You knew him?” he repeated. “Better and better. No doubt he’s
the one who’s been giving us all this trouble. Who was he?”
Allan gulped down a lump which had arisen suddenly in his throat.
“Reddy Magraw,” he answered, hoarsely.
“Reddy Magraw!” echoed the train-master, with a stare of
astonishment. “Are you sure?”
“I wouldn’t say so if I wasn’t sure, sir,” answered Allan, with a
little flush of resentment. “I couldn’t be mistaken.”
“Of course,” agreed the train-master, kindly. “But I didn’t think
Reddy would do anything like that.”
“I don’t believe he would have done it, sir,” said Allan, “if Dan
Nolan hadn’t got hold of him,” and he told of the conference he and
Jack had witnessed on the river-bank. “I believe Dan put all this
meanness into his head,” he concluded. “I’m sure it’s with Dan he
stays all the time he’s away from home.”
Mr. Schofield nodded again.
“No doubt you are right,” he assented. “Perhaps we ought to have
suspected him before. Of course, the boys never thought of
watching him, and so let him stay around the yards as much as he
wanted to. But we’ll have to protect ourselves. This sort of thing
can’t go on.”
“You mean Reddy will have to be arrested?” questioned Allan,
with sinking heart.
“No,” and the train-master smiled at his anxious face. “I’ll file an
affidavit of lunacy against Reddy before the probate judge, and we’ll
have him sent to the asylum at Athens. He’ll be well taken care of
there, and maybe will get well again much sooner than he would at
home. He’s not getting any better here, that’s certain; and he’s
caused us a lot of trouble. Besides, he’s only a burden to his wife.”
“Oh, she never thinks of that,” said Allan, quickly. “It’s his staying
away that hurts her.”
“Yes,” agreed Mr. Schofield, “I know. I’ve talked with her. She’s
like all the rest of these big-hearted Irish women,—ready to work
herself to death for the people she loves. Though,” he added, “that’s
a characteristic of nearly all women.”
 CHAPTER XV.
A SHOT FROM BEHIND

Mr. Schofield filed his affidavit before the probate judge without
delay, but, when the officer of the court went to look for Reddy, he
was nowhere to be found. From his wife it was learned that he had
not been home for two days, nor was he to be discovered in any of
his accustomed haunts around the yards or in the shops, and the
quest for him was finally given up in despair. Allan concluded that
Reddy had recognized him that morning, as he came out from under
the engine which he had tampered with, and knew that he was
found out at last; but, whether this was the case, or whether he had
got wind of the proceedings against him in some other way, certain
it is that Reddy disappeared from Wadsworth, and nothing more was
seen of him there for many days.
Word was quietly passed around among the trainmen to be on the
watch for him, as he was probably the one who had recently caused
the road so much annoyance; and this came to be pretty well proved
in time, for, with Reddy’s disappearance, the annoyances ceased, in
so far, at least, as they originated in the yards at Wadsworth. Out on
the line, indeed, they still continued,—switches were spiked, fish-
plates were loosened,—and then, of a sudden, even these ceased,
and everything ran as smoothly as in the old days. But this very
quiet alarmed the chief of detectives more than anything else had
done, for he believed it was the calm preceding a storm, and he
redoubled his precautions. Some of the officers were rather inclined
to laugh at his fears, but not the superintendent.
“You are right, Preston,” he said to the chief. “There’s something
in the wind. We’ll look sharp till after the pay-car gets here, anyway.
After that, if nothing happens, we can let up a bit.”
“When will the pay-car get here?” questioned Preston.
 “I don’t know yet; probably the night of the twenty-fourth.”
“You’d better order a double guard with it, sir,” suggested the
detective.
“I will,” assented the superintendent. “More than that, Mr.
Schofield and I will accompany it. If there’s any excitement, we want
to be there to see it.”
The detective nodded and went away, while the superintendent
turned back to his desk. It had occurred to him some days before
that an attempt to hold up the pay-car might be the culminating
point of the series of outrages under which the road was suffering,
and the more he had thought of it the more likely it appeared. The
pay-car would be a rich prize, and any gang of men who could get
away with its contents would be placed beyond the need of working,
begging, or stealing for a long time to come. The pay-car, which
always started from general headquarters at Cincinnati, went over
the road, from one end to the other, every month, carrying with it
the money with which the employés of the road were paid. To
Wadsworth alone it brought monthly nearly two hundred thousand
dollars, for Wadsworth was division headquarters. Nearly all the
trainmen employed on the division lived there, and besides, there
were the hundreds of men who laboured in the division shops. Yes,
the pay-car would be a rich prize, and, as the money it carried was
all in small denominations, it would be impossible to trace it, once
the robbers got safely away with it.
Let it be said in passing that on most roads the pay-car is now a
thing of the past. Payment is now usually made by checks, which are
sent out in registered packages from general headquarters, and
distributed by the division officials. This method is safe and
eminently satisfactory to the road, but some of the employés object
occasionally because of the difficulty they sometimes experience in
getting their checks cashed immediately.
The road had never suffered any attack upon its pay-car, primarily,
no doubt, because it was well-known that there were always half a
dozen well-armed men with it, who would not hesitate to use their
weapons. In fact, every man, as he stood at the little grated
cashier’s window, waiting for his money, could see the row of rifles
in the rack against the wall and the brace of pistols lying upon the
desk, ready to the cashier’s hand. Besides, even if the car were
broken into and the money secured, the difficulty of getting away
safely with the booty was enormous. The road, for the most part,
ran through a thickly settled country, and the moment the alarm was
given, posses could be set in motion and the wires set humming in
every direction, in the effort to run the robbers down. So, with
whatever hungry greed would-be highwaymen had eyed the piles of
bills and gold visible through the little grated window, none of them
had ever dared to make a forcible attempt to gain possession of
them.
Perhaps no one would dare attempt it now, thought the
superintendent; perhaps he had been merely alarming himself
without cause. At least, the most effective defensive measure would
be to keep secret the hour of the pay-car’s arrival. If no one knew
exactly when to look for it, no attempt could be made to hold it up.
Such an attempt, at the best, would be foolhardy, and the
superintendent turned back to his work with a little sigh of relief at
the thought. In a few moments, immersed in the pile of
correspondence before him, he had quite forgotten his uneasiness.
Certainly, as day after day went smoothly by, there seemed less
and less cause for apprehension. The tramps were evidently making
southward, like the birds, before the approach of winter. And nothing
more was seen of Dan Nolan. A watch had been kept upon the hut
on the hillside, but he had not returned there, so the hut was finally
demolished and the tunnel in the cliff closed up. Every effort had
been made to discover his whereabouts, but in vain. The detectives
of the road declared that he was nowhere in the neighbourhood; but
Jack Welsh was, as always, skeptical.
Just east of Wadsworth, beyond the river, the country rose into a
series of hills, sparsely settled and for the most part covered by
virgin forest. These hills extended for many miles to the eastward,
and among them, Jack told himself, Nolan could easily find a secure
hiding-place for himself and half a dozen men.
 “An’ that’s jest where he is,” said Jack to Allan one evening, when
they were talking the matter over. “That’s jest what Nolan’d love t’
do—put hisself at th’ head of a gang o’ bandits. He was allers talkin’
about highwaymen an’ train-robbers an’ desperadoes when he was
on th’ gang; but we only laughed at him then. Now, I see it would
have been a good thing if I’d ’a’ taken a stout stick an’ beat that
foolishness out o’ him.”
“But Reddy,” said Allan; “where’s Reddy?”
“Reddy’s with him,” answered Jack, decidedly. “An’ there’s no
tellin’ what scrape that reptile’ll git him into. I dare say, Reddy thinks
Nolan’s his best friend. That’d be natural enough, since he’s got to
thinkin’ that all his old friends are his worst enemies.”
“If we could only find him!” said Allan, wistfully “and bring him
home again. The poor fellow will never get well if he’s left to wander
about like that.”
But there seemed no way of finding him. Allan was the last person
who had seen him. That was at the moment, in the early morning,
when he had slunk away from under the engine. Some warning of
the search for him must certainly have reached him, for he had
never again appeared at home. His wife, nearly heart-broken by the
suspense, imagining him suffering all sorts of hardships, yet went
about her work with a calm persistence which concealed in some
degree the tumult which raged within her. The children must be fed
and cared for, and she permitted nothing to stand between her and
that duty. The division offices had never been so clean as they were
since Mrs. Magraw had taken charge of them.
A day or two later, Allan fancied he saw something which proved
the truth of Jack’s theory. It was one morning as he was returning
from his regular trip that he reached the embankment along the
river and glanced over at the willows on the farther side, as he
always did when he passed the place, for it was there that he and
Jack had first seen Reddy in Nolan’s company. His heart gave a leap
as he saw two men there. He stopped and looked at them, but the
early morning mist rising from the river hid them so that he could
discern nothing beyond the mere outline of their forms. He stared
long and earnestly, until they passed behind the clump of willows
and disappeared from sight. Something told him that it was Reddy
and Nolan again, but he could not be sure, and at last he went
slowly on his way. Perhaps they had a place of concealment
somewhere in the woods that stretched eastward from the river-
bank.
He mentioned his suspicion to Jack, as soon as he reached home,
and the latter was all on fire in a minute.
“I’ll tell you what we’ll do,” he said. “Next Sunday we’ll take a
walk through th’ woods over there, an’ it’s jest possible we’ll run on
to ’em. Mebbe we kin save Reddy from that rascal yet!”
So, bright and early the next Sunday morning, they started out,
taking with them a lunch, for they did not expect to return until
evening. They crossed the river by the bridge which they had used
on the night when they had tried to capture Nolan, and struck at
once into the woods.
“It’s like huntin’ a needle in a haystack,” said Jack, “but my idea is
that they’ve got a hut somewheres back in th’ hollers behind this
first range o’ hills. They’s mighty few houses back there,—nothin’ but
woods. So mebbe we’ll run on to ’em, if we have good luck.”
They scrambled up the first low range of hills which looked down
upon the broad river, and paused for a moment on the summit for a
look about them. Beyond the river lay the level valley which, twelve
decades before, had been one of the favourite dwelling-places of the
red man. The woods abounded with game of every sort, and the
river with fish, while in the fertile bottom his corn would grow to ripe
luxuriance with little cultivation. More than one fierce battle for the
possession of this smiling valley had been fought with the hardy
bands of pioneers, who had pushed their way up from the Ohio, but
at last the advancing tide of civilization swept the Indian aside, and
the modern town of Wadsworth began to rise where formerly there
had been no building more substantial than the hide wigwam.
Jack and Allan could see the town nestling among its trees in the
wide valley, but, when they turned about, a different view met them.
To the eastward were no plains, no bottoms, no city, but, far as the
eye could see, one hill rose behind another, all of them heavily
wooded to the very summit, so steep and with a soil so gravelly that
no one had ever attempted to cultivate them. Nor did any one dwell
among them, save a few poverty-stricken families, who lived in
summer by picking blackberries and in winter by digging sassafras-
root,—a class of people so shiftless and mean and dirty that no
respectable farmer would permit them on his place.
It was the rude cabin of one of these families which Jack and
Allan saw in the valley before them, and they determined to descend
to it and make inquiries. There was a rough path leading downwards
through the woods, and this they followed until they came to the
edge of the little clearing which surrounded the house. They went
forward to the door and knocked, but there was no response, and,
after a moment, Jack pushed the door open cautiously and looked
inside. As he did so, a shot rang out behind him, and Allan felt a
sudden sting of pain across his cheek as a bullet sang past and
embedded itself in the jamb of the door.
“What’s that?” cried Jack, springing around, and then he saw
Allan wiping the blood from his cheek. “What is it, lad?” he asked,
his face paling. “You’re not hurted?”
“Only a scratch,” said Allan, smiling. “Just took a little of the skin
off.”
“Come in here an’ we’ll look at it,” and Jack half-dragged him
through the open door, which he closed and barred. “That’ll keep th’
varmint from takin’ another shot at us,” he said. “Now let’s see the
cheek.”
But not even Jack’s anxiety could make of the wound more than a
scratch. The bullet had cut the skin from the left cheek for nearly an
inch, and a little cold water, which Jack found in a bucket in the
house, soon stopped the bleeding.
“Who could it have been?” asked Allan, at last.
“Y’ don’t need t’ ask that, I hope,” cried Jack. “It was Dan Nolan!”
“Well, he didn’t hurt me much,” said Allan, with a laugh. “He
doesn’t seem to have very good luck.”
 “No,” said Jack; “but if that bullet had been an inch further to th’
right, you wouldn’t be a-settin’ laughin’ there,” and a little shudder
ran through him as he thought of it, and he clinched his hands as he
imagined what his vengeance would have been.
“Do you suppose Nolan lives here?” asked Allan, looking curiously
around the room.
“No,” said Jack; “they’s one o’ th’ Waymores lives here, but I
wouldn’t be a bit surprised if he was in cahoots with Nolan. These
people’re just as much vagabonds as them that go trampin’ about th’
country.”
Allan looked again about the squalid room, and turned a little sick
at the thought of living in the midst of such filth and wretchedness.
“Come, let’s get out of here,” he said. “I want some fresh air. This
is enough to turn one’s stomach.”
“I tell you,” suggested Jack, “suppose we go out th’ back door
there an’ sneak around th’ edge of th’ clearin’. Mebbe we kin come
on Nolan when he ain’t lookin’—and what I’ll do to him’ll be a
plenty!”
Allan laughed at his ferocity.
“I don’t believe Nolan would stay around here,” he said. “He didn’t
know but what there were others with us. He probably decamped as
soon as he took that crack at me.”
“Well, it won’t do any harm t’ try,” said Jack, and try they did, but
no trace of Nolan was anywhere to be seen.
They went on through the woods, eating their lunch beside a
limpid spring which bubbled from beneath a rock in the hillside, and
during the afternoon pushed on along the valley, but met no human
beings. If it was indeed Nolan who fired the shot, he had taken to
cover effectually. Allan began to doubt more and more that it had
really been Nolan.
“It might have been a hunter,” he pointed out to Jack, “who was
shooting at something else, and did not see us at all. Such things
happen, you know.”
“Yes,” Jack admitted, “but that wasn’t what happened this time,”
and, when they reached home again, he went straight over to the
offices and related to Mr. Schofield the details of the morning’s
adventures. That official promised to put two detectives on Nolan’s
trail at once. They worked on it for two or three days, but, though
they even employed a bloodhound in the effort to run him down, all
their work was quite in vain. The man to whom the cabin belonged
said he had walked over to a neighbour’s that Sunday and had been
away from home all day. He denied all knowledge of Nolan or Reddy
Magraw, And the search ended, as all the others had done, without
finding a trace of either of them.
So the days passed, and the work on section went on in its
unvaried round. And even from day to day Allan felt himself
changing, as his horizon broadened. He had become a different boy
from the diffident youngster who had asked Jack Welsh for a job
that morning a few short months before. Work had strengthened
him and made him a man; he felt immeasurably older; he had
gained self-confidence; he felt that he could look out for himself in
any emergency. He was playing a man’s part in the world; he was
earning an honest living. He had gained friends, and he began to
feel that he had a future before him. He was going to make the most
of every opportunity, for he was ambitious, as every boy ought to
be. He longed to get into the superintendent’s office, where there
would be a chance to learn something about the infinitely difficult
work of operating the road, and where there would be a chance for
promotion. He never spoke of this to Jack, for such a thought
seemed almost like desertion, but he never passed the offices
without looking longingly up at the network of wires and signals.
Sometimes, when some duty took him up-stairs, he could hear the
wild chatter of the instruments in the despatchers’ office, and he
determined to try to understand their language.
Jack came into the section-shanty one morning with a sheet of
paper in his hand and a broad smile upon his face.
“I’ve got a Christmas gift fer y’, boys,” he said, and stuck the
notice up on the hook. They all crowded around to read it.

“NOTICE TO SECTION FOREMEN

 “All patrolling of the tracks will cease on and after
December 25th next. This company deeply appreciates the
faithful service its section-men have given it, and will
endeavour to show that appreciation by increasing the
wages of all section-men ten per cent., to go into effect
January 1st.
“A. G. Round,
“Supt. and Gen. Manager.
“Cincinnati, Ohio, Dec. 18th.”

“How’s that, boys?” asked Jack. “That’s a Christmas gift worth

havin’, ain’t it?” and he looked about from face to face, for he knew
what that increase of twelve and a half cents a day meant to these
men. It meant more food for the children, a new dress for the wife,
—a little more luxury and ease in lives which were hard enough at
best.

The weather had been cool and pleasant, but it changed as

Christmas drew near, and the twenty-fourth was marked by a heavy
storm. All the afternoon the rain fell in torrents, the wind blew a
hurricane, and—something rare for December—the lightning flashed
and the thunder rumbled savagely overhead.
Work was out of the question, and, after playing awhile with
Mamie, and telling her wonderful stories of Santa Claus and what he
was going to bring her that night, Jack Welsh mounted to his room
to get a few hours of much-needed rest. For his hours of patrol duty
were from nine o’clock to midnight, and this trying extra work was
beginning to tell upon him. With that characteristic unselfishness
which endeared him to his men, he had chosen the worst trick for
himself.
“I’ll be mighty glad when this extry work’s over,” his wife
remarked, as she busied herself with the dishes in the kitchen, “fer
all it pays double. There’s no use fer a man t’ kill hisself jest t’ make
a little extry money. Jack’s purty nigh wore out;—just listen how he
snores!”
 Allan looked up at her and laughed from the place on the floor
where he was helping Mamie construct a castle out of painted
blocks.
“We’ll let him sleep as long as we can,” he said; and so it was not
till nearly eight o’clock that Mamie was sent up-stairs to call him.
They heard him get heavily out of bed, and, while he was putting on
his clothes, Mary trimmed the lamp and stirred up the fire, in order
that everything might be bright and warm to welcome him. And
Allan, watching her, felt his eyes grow a little misty as he saw her
loving thoughtfulness.
“Better hurry up, Jack, dear,” she called. “You haven’t much time t’
spare.”
“Comin’, Mary, comin’,” he answered, “as soon as I git this plaguy
boot on.”
“It’s an awful night,” said his wife, as he came sleepily down the
stair. “Do you have t’ go, Jack? Can’t y’ stay home on Christmas
Eve?”
“No, I have to go, Mary;” and he doused hands and face in a
great basin of rain-water. “It’s th’ last time, y’ know, an’ I ain’t a-
goin’ t’ shirk now. Maybe th’ pay-car’ll come through t’-night. They
promised us our pay this month fer Christmas, y’ know, an’ we want
to be sure that she gits here all right. To-morrow we’ll have a great
time, an’ they’ll be no more patrol duty after that.”
Mamie danced around the floor, for she had received mysterious
hints from Allan of what was to happen on the morrow, and her
father picked her up and kissed her before he sat down to the
supper that was on the table awaiting him. He drank his coffee and
ate his bacon and eggs with an appetite born of good digestion.
Then he donned his great boots and rubber coat.
“Now, don’t y’ worry, Mary,” he said, drawing his wife to him.
“There won’t a drop of rain git to me in this rig. Good-bye, Mamie,”
and he picked up the child and kissed her again. “Take good care of
’em, Allan.”
He rammed his wide leather hat down farther upon his head,
made sure that his lantern was burning properly, took up the heavy
club he always carried, and opened the door.
“Good-bye,” he called back, and in a moment had disappeared in
the darkness.
 CHAPTER XVI.
A CALL TO DUTY

Allan sat down by the table and picked up a book on telegraphy

which he had secured from the public library of Wadsworth, and
which he was studying faithfully in such odd hours as he had to
himself,—without much result, be it said, since he had no instrument
to practise on,—while Mrs. Welsh put the excited Mamie to bed,
warning her to go to sleep at once, lest she frighten Santa Claus
away, and then went slowly about the task of clearing up the supper
dishes and putting the house in order for the morrow.
“An’ we’ll hev t’ set up th’ Christmas tree to-night,” she remarked.
“It’ll hev t’ be ready when Mamie wakes up in th’ mornin’, an’ she’ll
wake mighty early.”
“All right,” said Allan; “as soon as you’re ready, tell me.”
That morning, on his way in from his trip, he had stopped to cut a
little evergreen in a grove near the track, and this had been safely
deposited in the cellar, out of the reach of Mamie’s curious eyes.
Long strings of snow-white pop-corn had been threaded, streamers
of bright-coloured tissue-paper prepared, little red and blue candles
bought; all of which, together with the presents and parti-coloured
candies, would make the tree in Mamie’s eyes a veritable fairy
picture. It was her first Christmas tree, and it was to be a splendid
one!
“Now I’m ready, Allan,” said Mrs. Welsh, at last; and Allan laid
aside his book and brought up the tree from the cellar, while Mrs.
Welsh unlocked the closet where the ornaments and gifts had been
carefully hidden. “We’ll set it up in that corner by th’ winder,” she
continued; “then th’ people that goes by outside kin see it, too.”
“I’m glad I’m going to be here when Mamie first sees it,” said
Allan, as he nailed some cross-pieces on the bottom of the tree to
hold it upright. “I’d be out on my trick if it hadn’t been for that
order.”
“Yes, an’ I’m glad, too,” agreed Mrs. Welsh. “That patrol work was
hard on all o’ you. But this trip o’ Jack’s t’-night’ll be th’ last that any
o’ th’ gang on Twenty-one has t’ make. I only wish th’ patrollin’ had
ended to-day instead o’ to-morrer, then Jack’d be here with us now
instead of out in that howlin’ storm.”
They listened a moment to the wind whistling about the house,
and to the rain lashing savagely against the windows.
“It is a bad night,” said Allan, “but Jack won’t mind it. He’ll be
thinking of the good time he’s going to have to-morrow.”
“Well, I’m glad it’s th’ last time, anyway,—fer your sake, too, Allan.
Jack an’ me used t’ worrit ourselves nearly sick when you’d start out
alone that way. We never knowed what’d happen.”
“And nothing ever happened, after all!” laughed Allan. “I believe
that Dan Nolan has forgotten all about me long before this.”
Mary shook her head doubtfully.
“I don’t know,” she said. “But anyway it won’t matter now, for
you’ll allers be with th’ gang after this, an’ Nolan won’t dare show his
nose around where they are. Jack’s just achin’ t’ lay hands on him.”
“There,” said Allan, as he drove the last nail, “that’s solid, I think,”
and he set the tree up in the corner. “Now, what next?”
“All these things has got t’ have little ribbons tied to ’em,” said
Mrs. Welsh, who had been getting out the candy, fruits, and
presents. “But I kin do that. You set down an’ read your book.”
“Indeed I won’t!” protested the boy. “I want to feel that I’ve had
something to do with this tree,” and he drew a chair up to the table.
“Somethin’ t’ do with it!” retorted Mary. “You’ve had everything t’
do with it, I’m a-thinkin’. It’s your Christmas tree, Allan, an’ mighty
nice of you to think of it, my boy.”
“Oh, I wanted Mamie to have one,” he protested; “especially
when it was so little trouble to get. Now it’s ready for the pop-corn.”
Mrs. Welsh began to drape the white festoons about the tree.
Suddenly she paused and looked up with startled eyes.
 “What was that?” she asked.
Allan listened with strained attention, but heard only the dashing
of the rain and whistling of the wind.
“It sounded like the trampin’ of men,” she said, after a moment.
“Perhaps it wasn’t anything. Yes! There it is ag’in!”
She sprang to the door and threw it open with frenzied haste. Up
the path she saw dimly four men advancing, staggering under a
burden. Her love told her what the burden was.
“It’s Jack!” she screamed. “It’s Jack! My God! They’ve killed him!”
and, forgetting the storm, she sprang down the path toward them.
“Is he dead?” she demanded. “Tell me quick—is he dead?”
It was Jack’s hearty voice that answered her.
“Not by a good deal, Mary! It’ll take more’n a twisted ankle t’ kill
Jack Welsh!”
She threw her arms about him, sobbing wildly in her great relief,
the men standing by, awkwardly supporting him.
“But there! Here I am keepin’ you out in th’ wet! Bring him in,
men,” and she ran on before, radiant with happiness. This
misfortune was so much less than she had feared, that it seemed
almost not to be a misfortune at all. “It’s only a sprained ankle,
Allan,” she cried to the boy, and ran on past him to get a chair ready.
The men settled the foreman down into the chair cautiously.
“Shall I git th’ doctor?” asked one.
Jack laughed.
“Th’ doctor, indade!” he said. “Mary’ll fix this all right in no time. It
ain’t bad. But I’m much obliged to ye, boys.”
The men took themselves back to work, happier, somehow, for
having witnessed the little scene on the pathway.
But when the boot was cut away from the swollen ankle, it was
evident that its owner would not go about on it again for many days
to come. It was bathed and rubbed with liniment and tightly
bandaged by the wife’s deft fingers, and the pain gradually grew
less.
 “I slipped on a rail, y’ see,” explained Jack, when the injured
member had been properly cared for.
“My foot went down into a frog, an’ then I had t’ fall over and
wrench it. I’m sorry it give y’ such a turn, Mary; I ought t’ have sent
a man on ahead t’ warn you.”
Mary smiled down on him indulgently.
“’Twas better this way, Jack, dear,” she said. “I’m so happy now t’
have y’ alive here talkin’ t’ me that it hardly seems you’ve met with
an accident at all! See, we was jest gittin’ th’ Christmas tree ready;
now you kin set there, with your foot up on a chair like this and boss
th’ job. It’s an ill wind that blows nobody good; and I’m glad fer your
own sake. Now you won’t have to go out in th’ storm.”
But, at the words, the foreman’s face suddenly changed.
“Good heavens!” he cried. “I fergot! Th’ track has t’ be patrolled.
Somebody has t’ go,” and he raised himself in his chair, but fell back
with a groan. “No use,” he muttered, between his clenched teeth.
“To-night, too, when th’ pay-car’ll most probably come through!
Allan, you’ll have t’ run over t’ th’ train-master, an’ git him t’ send
somebody else.”
“Mr. Schofield went to Cincinnati this morning, I think,” answered
Allan. “I saw him getting on the train as I came in from the road.”
“O’ course!” cried Jack, fiercely. “He’s gone down t’ come back
with th’ pay-car. Well, hunt up th’ chief despatcher, then; somebody’s
got t’ patrol that track.”
Without a word, Allan donned the foreman’s rubber coat and
great hat. Then he picked up the heavy club and the red signal-
lantern, which was standing, still lighted, on the table, where one of
the men had placed it.
“What y’ goin’ t’ do with that?” demanded Jack, eying the boy
uneasily. “Y’ don’t need that to go to th’ depot with.”
“No,” said Allan, smiling, “but you see, I’m not going to the depot.
I’m going to take your trick.”
“No, you ain’t!” cried the other, fiercely.
“Yes, I am. There’s nobody else to be got at this time of night;
besides, you said yourself there’s no danger.”
 Jack looked at him a moment doubtfully.
“No, I don’t think there is,” he said at last. “But it’s a bad night.”
“Pooh!” and Allan whirled his club disdainfully. “Not a drop of
water can get to me in this rig,” he added, echoing Jack’s words.
“Anyway,” said the latter, hesitatingly, “y’ll be back in three hours,
an’ you kin sleep late in the mornin’. I don’t see no other way,” he
added, with a sigh.
“All right,” said Allan; “good-bye,” and went to the door.
But Mrs. Welsh ran after him, threw her arms about his neck and
kissed him.
“You’re a good boy, Allan,” she cried, half-sobbing. “I’ll have a
good hot meal fer you when y’ git back.”
Allan laughed.
“I’ll be ready for it. Be sure to make a good job of that Christmas
tree! Good-bye,” and he opened the door and strode out into the
night.
 CHAPTER XVII.
A NIGHT OF DANGER

But the storm was not to be dismissed so lightly as Allan had

dismissed it. Among the houses of the town he was sheltered
somewhat, but, as he strode on westward, out into the open
country, it seemed to rage with redoubled violence. The wind swept
across the embankment along the river with a fury which threatened
to blow him away. He bent low before it, and, swinging his lantern
from right to left in unison with his steps, fought his way slowly
onward, his eyes on the track. Away down at his right he could hear
the river raging, and from instant to instant the lightning disclosed to
him glimpses of the storm-tossed water. Once he saw a ball of fire
roll down the track far ahead and finally leap off, shattering into a
thousand fragments.
The thunder crashed incessantly, and overhead he could see great
black clouds rolling across the sky. The rain fell in torrents, and,
driven before the wind, dashed into his face with a violence which
stung and blinded him whenever he raised his head. From time to
time, he was forced to face about, his back to the wind, and gasp for
breath. Once a gust of extra violence drove him to his knees, but he
struggled up again and on. He knew that he was not the only one
who was facing the tempest; he knew that up and down two
hundred miles of track others were fighting the same fight. They had
left warm homes, just as he had done, where preparations for
Christmas were going on; they had not held back from the call of
duty, nor would he.
He shut his teeth tight together and staggered on. A vision
flashed before him of the bright room he had just left; he could see
Jack sitting in his chair, and Mary putting the last touches to the
Christmas tree. He knew that they were talking of him, planning for
him, and a sudden wave of tenderness swept over him at the
thought of how these people had taken him into their hearts and
given him another home in place of the one he had lost. The new
one, of course, could never quite take the place of the old one; and
yet he was no longer the friendless, hungry, lonely boy who had
approached Jack Welsh so timidly that morning and asked for work.
He had friends to whom he could look for sympathy and
encouragement; there were hearts which loved him; he had a place
in the world and was doing useful work; and he hoped in time to
prove himself worthy of a higher place and competent to fill it. To-
morrow would be a happy Christmas!
So, as he fought his way on, it was with no despondent heart, but
with a bright and hopeful one, that cared nothing for the discomfort
of the storm. He was happy and at peace within, and no mere
external tempest could disturb him!
A little grove on either side the track, its trees roaring in the
tempest, gave him a moment’s shelter. Then he pushed on to the
two iron bridges which spanned the canal and the highroad just
beyond it. These he looked over carefully by the light of his lantern,
and assured himself that they were all right. Beyond the bridges was
the long grade which led to the deep cut through the spur of hill
which stretched across the track, and here the wind was howling
with a fury that threatened to sweep him off his feet. But he fought
his way on doggedly, step by step, head lowered, eyes on the track,
lantern swinging from side to side.
Then suddenly the wind ceased, though he could still hear it
roaring far overhead, and he looked up to see that he had gained
the cover of the cut. He stopped for breath, rejoicing that the
hardest part of his task was over. Beyond the cut was a sharp curve,
the road was carried on a high trestle over a deep ravine, and then
onward along the top of an embankment,—a “fill,” in railroad
parlance,—and this embankment marked the western limit of his
trick. On his journey home, he would have the wind at his back and
could get along easily and rapidly.
 Cheered by this thought, he walked on through the cut, but, as he
turned the corner at the farther side, the wind struck him again with
terrific force. He staggered back for an instant against the rock,
when there came a great flash of lightning that silhouetted before
him every feature of the landscape. Yet, as the lightning died, there
remained photographed on his brain only one detail of the picture,—
before him stretched the trestle, and in the middle of it four men
were working with feverish energy tearing up a rail!
He leaned back against the rock, dazed at the sight, not
understanding for a moment what it meant. Then in a flash its
meaning dawned upon him—they were preparing to wreck a train.
But what train? It must be nearly eleven o’clock—no train was due
for an hour or more—yes, there was—the pay-car, hurrying from
Cincinnati with the Christmas money for the men. It was the pay-car
they were after. But the pay-car was always crowded with armed
men—men armed not merely with revolvers, but with Winchester
repeaters. Yet, let the car crash over that trestle fifty feet upon the
rocks below, and how many of its occupants would be living to
defend themselves?
Allan sank back among the rocks trembling, realizing that in some
way he must save the train. His first act was to open his lantern and
extinguish it, lest it betray him. Then he tried quickly to think out a
plan of action. He must get across the trestle in order to flag the
train—but how could he get across it? And of a sudden his heart
stood still as two vague forms loomed up before him. They stopped
for a moment in the shelter of the wall.
“It was just about here,” said a rough voice he seemed to
recognize. “I caught a glint of a red light an’ then it went out. I was
watchin’ fer the track-walker, y’ know, an’ I was sure that was him.”
“Flash o’ lightnin’, most likely,” came in a hoarse undertone from
another.
Allan heard the newcomers grope about, as he cowered close to
the rock, his heart beating fiercely as he expected each moment to
feel a hand upon him.
“Y’ see they ain’t nobody here,” said the first speaker, at last.