Prof. Joanna Manning1
1Auckland Law School, University of Auckland, Auckland, New Zealand
Biography:
Jo Manning is a Professor of Law at the Auckland Law School , University of Auckland. She teaches and has published widely both internationally and within NZ in the areas of health law, ethics and policy, as well as tort law, negligence and accident compensation law. She is a co-author of NZ’s leading textbook, P Skegg & R Paterson (eds), Health Law in New Zealand (Thomson Reuters, 2015), and of its predecessor, P Skegg & R Paterson (eds), Medical Law in New Zealand (Thomson Reuters,2006), and edited The Cartwright Papers: Essays on the Cervical Cancer Inquiry 1987-88 (Bridget Williams Books, 2009). She is on the Editorial Board of Medical Law Review and a Legal Issues Editor of the Journal of Law and Medicine.
Abstract:
In 2023 in Maharaj v Te Whata Ora of Auckland a New Zealand High Court granted an order authorising clinicians treating an incapacitated patient to withdraw a life support machine from him, on the ground that his condition was hopeless and that continued treatment was an inefficient use of limited resources . It rejected the family’s plea for continued treatment for a few more days, to permit it to seek second opinions and to perform religious rites. These cases raise important issues: who is the ultimate decision-maker in disputed cases such as this, and on what criteria is the decision to be made; is a medical resource allocation decision a lawful justification for the denial of life supporting care and if so, are any conditions attached; and whether court approval is or should be mandatory before life support can be withdrawn when the family refuses consent and, if so, whose task is or should it be to ensure the matter comes before the court. An analysis is undertaken of the common law of New Zealand, Australia, Canada and the UK on these questions. There have few such cases to have come before NZ courts in recent decades. This article argues that Maharaj was a missed opportunity to consider comparative case law since the last judicial consideration of these issues, in particular two recent decisions of the Supreme Court of the UK, which have placed its common law on a more modern, patient-centred and empathetic legal basis.