Why Judges? An Argument about Who Should Decide Children Special Medical Procedure Cases

Abstract

The Wardship jurisdiction has been traditionally exercised by courts of law.  ‘Children’s special medical procedure’ cases herald a new frontier.  Three of the most significant cases that Australian courts refer to and rely on in their exercise of the jurisdiction are Gillick, Marion and P v P.  Thirty-one judges played a part in these three cases.  This seems a somewhat extravagant use of scarce and expensive judicial resources.  A non-lawyer hearing of these legal spectaculars would be entitled to conclude that with the combined wisdom and experience of this superabundance of eminent pundits there would now be certainty.  Legal principles would be laid out on shiny and glistening stone tablets.  Bold black letters would record the simple but elegant canons postulated.  Alas it is not so.  Should we, therefore, look to other options for the disposition of these cases.  Are judges the right people to determine questions that involve the uneasy intersection of law, ethics, rights and medicine?

About the Speaker

Anthony Graham, QC, is a Professorial Fellow at Charles Darwin University in Australia, where he directs their Family Law course.  He is also currently a PhD candidate at Monash University.  After a career at the Victorian Bar, he served as a Judge of the Family Court of Australia, retiring in 1998.  He returned to practice at the Bar, and formally retired in 2012.  At the Bar, his practice focused on Criminal Law, Local Government, Torts and Administrative Law, and also included appearing as lead counsel in a number of high profile murder trials.