scholarly journals A decay of rights: The decision in New Health New Zealand Inc v South Taranaki District Council

2021 ◽  
Author(s):  
◽  
Rose Louise Goss
Keyword(s):  
United States ◽  
New Zealand ◽  
Medical Treatment ◽  
Bill Of Rights ◽  
Water Supplies ◽  
Legal Development ◽  
District Council ◽  
Definition Of ◽  
The Right ◽  
Right To Refuse

<p>The decision in New Health New Zealand Inc v South Taranaki District Council is the most recent legal development in the New Zealand debate about fluoridation of public water supplies. That decision centred on the interpretation of section 11 of the New Zealand Bill of Rights Act, the right to refuse medical treatment. The Court held that the fluoridation in question was legal, and reached a limited definition of medical treatment that did not encompass fluoridation. This paper analyses the reasoning leading to that interpretation, concluding that the decision is problematic and that the definition of s 11 needs to be remedied. The use of the wording of s 11 to limit the definition of medical treatment was inappropriate, as was the policy reasoning used to support that limitation. The structure of reasoning followed exacerbated these issues and adhered too closely to the reasoning in United States cases. Furthermore, the application of a de minimis threshold was conducted without adequate scrutiny, and such a threshold should not be applied to s 11.</p>

scholarly journals A decay of rights: The decision in New Health New Zealand Inc v South Taranaki District Council

2021 ◽  
Author(s):  
◽  
Rose Louise Goss
Keyword(s):  
United States ◽  
New Zealand ◽  
Medical Treatment ◽  
Bill Of Rights ◽  
Water Supplies ◽  
Legal Development ◽  
District Council ◽  
Definition Of ◽  
The Right ◽  
Right To Refuse

<p>The decision in New Health New Zealand Inc v South Taranaki District Council is the most recent legal development in the New Zealand debate about fluoridation of public water supplies. That decision centred on the interpretation of section 11 of the New Zealand Bill of Rights Act, the right to refuse medical treatment. The Court held that the fluoridation in question was legal, and reached a limited definition of medical treatment that did not encompass fluoridation. This paper analyses the reasoning leading to that interpretation, concluding that the decision is problematic and that the definition of s 11 needs to be remedied. The use of the wording of s 11 to limit the definition of medical treatment was inappropriate, as was the policy reasoning used to support that limitation. The structure of reasoning followed exacerbated these issues and adhered too closely to the reasoning in United States cases. Furthermore, the application of a de minimis threshold was conducted without adequate scrutiny, and such a threshold should not be applied to s 11.</p>

scholarly journals A Decay of Rights: The Decision in New Health New Zealand Inc v South Taranaki District Council

2015 ◽  
Vol 46 (1) ◽  
pp. 161
Author(s):  
Rose Louise Goss
Keyword(s):  
United States ◽  
New Zealand ◽  
Medical Treatment ◽  
Bill Of Rights ◽  
Water Supplies ◽  
Legal Development ◽  
District Council ◽  
Definition Of ◽  
The Right ◽  
Right To Refuse

The decision in New Health New Zealand Inc v South Taranaki District Council is the most recent legal development in the New Zealand debate about fluoridation of public water supplies. That decision centred on the interpretation of s 11 of the New Zealand Bill of Rights Act 1990, the right to refuse medical treatment. The Court held that the fluoridation in question was legal, and reached a limited definition of medical treatment that did not encompass fluoridation. This article analyses the reasoning leading to that interpretation, concluding that the decision is problematic and that the definition of s 11 needs to be remedied. The use of the wording of s 11 to limit the definition of medical treatment was inappropriate, as was the policy reasoning used to support that limitation. The structure of the reasoning exacerbated these issues and adhered too closely to the reasoning in United States cases. Furthermore, the application of a de minimis threshold was conducted without adequate scrutiny, and such a threshold should not be applied to s 11.

The Need for a Constitution in the United Kingdom

1979 ◽  
Vol 14 (3) ◽  
pp. 269-285
Author(s):  
Wilberforce
Keyword(s):  
United Kingdom ◽  
New Zealand ◽  
Legal System ◽  
Common Law ◽  
Bill Of Rights ◽  
The United Kingdom ◽  
Flexible Instrument ◽  
The Common ◽  
Definition Of ◽  
The Right

I was not surprised when, from several alternative subjects, you chose, as the title of my Lecture, the need for a Constitution in Britain. Those of us without a written constitution are indeed, a select club—New Zealand, Israel, the United Kingdom.I will start with a quotation from Lord Salmon. In a recent lecture, he said: In this country [U.K.] we have an unwritten constitution. I have always regarded this as a blessing and never agreed with the theoretical objections to it. It is superbly flexible and above all it has stood the test of time. It works—and works admirably. But I am beginning to wonder whether it might not be wise to evolve, not an elaborate written constitution but perhaps the equivalent of a modern Bill of Rights. A statute which should lay down our basic freedoms, provide for their preservation and enact that it could not be repealed save by, say, a 75% majority of both Houses of Parliament.One can recognize in this passage the views of an eminent common lawyer, believing in the strength and potentialities of the common law as a flexible instrument, in, of course, the right hands: of one who believes deeply in human freedom, and who is concerned about the threat to it: who desires an explicit definition of the basic liberties and who believes that these can be protected by a sufficiently strong, entrenched, legal system. In this he undoubtedly reflects the views of many people, probably of the majority of ordinary men.

scholarly journals The Right to Refuse Treatment for Infectious Disease

2020 ◽  
pp. 171-182
Author(s):  
Carl H. Coleman
Keyword(s):  
Infectious Disease ◽  
Infectious Diseases ◽  
Medical Treatment ◽  
Third Parties ◽  
Extreme Position ◽  
Refusal Of Treatment ◽  
Right To Refuse Treatment ◽  
The Right ◽  
Right To Refuse

Abstract One of the central tenets of contemporary bioethics is that mentally competent persons have a right to refuse medical treatment, even if the refusal might lead to the individual’s death. Despite this principle, laws in some jurisdictions authorize the nonconsensual treatment of persons with tuberculosis (TB) or other serious infectious diseases, on the grounds that doing so is necessary to protect the safety of others. This chapter argues that, in the vast majority of situations, overriding a refusal of treatment for infectious disease is not justifiable, as the risk to third parties can be avoided by the less restrictive alternative of isolating the patient. At the same time, it rejects the extreme position that the nonconsensual treatment of infectious disease is never appropriate. Instead, it concludes that compelling an individual to undergo treatment for infectious diseases may be ethically justifiable in exceptional situations if a refusal of treatment poses a grave risk to third parties, the treatment is not overly burdensome and has been established to be safe and effective, and less restrictive alternatives, including humanely isolating the patient, are not feasible under the circumstances. The burden should be on those seeking to compel unwanted treatment to demonstrate that these requirements have been met.

scholarly journals Censoring cyber-bullies: Is the Harmful Digital Communications Bill a justified limitation on the right to freedom of expression?

2021 ◽  
Author(s):  
◽  
Annie O'Connor
Keyword(s):  
New Zealand ◽  
Public Interest ◽  
Digital Communication ◽  
Freedom Of Expression ◽  
Digital Communications ◽  
Bill Of Rights ◽  
Criminal Offence ◽  
Online Abuse ◽  
The Right

<p>Harmful Digital Communications have become a pervasive and serious problem in New Zealand. The Harmful Digital Communications Bill aims to address this problem in a number of ways. This paper focuses on the civil enforcement regime and the criminal offence of causing harm by posting a digital communication established by the Bill. It considers these aspects of the Bill in light of the right to freedom of expression, and analyses whether they constitute a justified limitation on that right. By applying the New Zealand Bill of Rights Act 1990 section 5 analysis from Hansen v R, the paper discovers that the civil enforcement regime is a justified limitation, but the new criminal offence is not. The paper concludes that the inclusion of a public interest defence in the offence would allow it to effectively ameliorate the harm caused by online abuse without impinging on freedom of expression more than is reasonably necessary.</p>

Alternative Pluralisms: Israeli and American Constitutionalism in Comparative Perspective

1989 ◽  
Vol 51 (2) ◽  
pp. 159-189 ◽  
Author(s):  
Gary J. Jacobsohn
Keyword(s):  
United States ◽  
Free Speech ◽  
The United States ◽  
Comparative Perspective ◽  
Institutional Evolution ◽  
Bill Of Rights ◽  
Alternative Models ◽  
Legal Development ◽  
New Politics ◽  
American Model

Constitutional transplantation, the process by which the constitutional practice of one society becomes an important source for the legal development of another, has figured importantly in the institutional evolution of new politics. In this article, I examine the constitutional experience of Israel and the United States, two societies that share a language of jurisprudential discourse while differing significantly in a number of polically relevant ways. In particular, the fact that both societies can be described as pluralistic only conceals the fact that they represent alternative models of pluralism that may render problematic the the transferablity of constitutional outcomes from one place to another. Thus, the literature of modern constitutionalism, which has tended to emphasize the rights-based liberal ethic of individualism, is arguably more compatible with an American model in which the principles of the “procedural republic” are more unproblematically embraced. To pursue this question, I look at two issues—the advisability of adopting a bill of rights and the appropriate stance of the regime on the question of free speech—that allow us to reflect upon the limits and possibilities of constitutional transplantation.

Parliamentary privilege and defamation

1999 ◽  
Vol 58 (3) ◽  
pp. 461-499
Author(s):  
Nicholas Bamforth
Keyword(s):  
New Zealand ◽  
Direct Evidence ◽  
Bill Of Rights ◽  
Members Of Parliament ◽  
Domestic Courts ◽  
Wide Definition ◽  
The Times ◽  
Definition Of ◽  
Domestic Law ◽  
Court Of Appeal

IN the past five years, the conceptual ambiguities of Parliamentary privilege have come to haunt the courts with a vengeance. Ancient constitutional questions such as what constitutes a “proceeding” in Parliament and what counts as “questioning” a proceeding–encapsulated in colourful nineteenth-century cases like Stockdale v. Hansard (1839) 9 Ad.&E. 1, the Case of the Sheriff of Middlesex (1840) 11 Ad.&E. 273, and Bradlaugh v. Gossett (1884) 12 Q.B.D. 271–have been at the forefront of a clutch of recent decisions. In Prebble v. Television New Zealand [1995] 1 A.C. 321, the Privy Council gave new bite to Parliamentary privilege by ruling (in relation to the New Zealand Parliament) that it would be an abuse of both Article 9 of the 1689 Bill of Rights–which prohibits courts from questioning the freedom of speech and debates or proceedings in Parliament–and of a broader principle of mutuality of respect between Parliament and the judiciary, to allow any party to litigation to “bring into question anything said or done in the House by suggesting (whether by direct evidence, cross-examination, inference or submission) that the actions or words were inspired by improper motives or were untrue or misleading” (above, at 337). As a result, domestic courts stayed two libel actions brought by Members of Parliament, on the basis that the claims and defences involved raised issues whose investigation would infringe Parliamentary privilege (see, e.g., Allason v. Haines, The Times, 25 July 1995). Parliament responded by enacting section 13 of the Defamation Act 1996, allowing individual MPs to waive Parliamentary privilege in order to bring defamation actions. But in an apparent reassertion of the spirit of Prebble, the Court of Appeal expressly approved–albeit outside the context of defamation–the Privy Council's wide definition of privilege as a matter of domestic law (R. v. Parliamentary Commissioner for Standards, ex p. Fayed [1998] 1 W.L.R. 669, noted [1998] C.L.J. 6).

Hazards in anaesthetic practice: general considerations, injury, and drugs.

2017 ◽  
Author(s):  
Alan F. Merry ◽  
Simon J. Mitchell ◽  
Jonathan G. Hardman
Keyword(s):  
United States ◽  
New Zealand ◽  
Older Patients ◽  
Myocardial Injury ◽  
Ether Anaesthesia ◽  
Mortality Review ◽  
All Cause Mortality ◽  
Zealand College ◽  
Definition Of ◽  
Related Mortality

The hazards of anaesthesia should be considered in the context of the hazard of surgery and of the pathology for which the surgery is being undertaken. Anaesthesia has become progressively safer since the successful demonstration of ether anaesthesia in Boston, Massachusetts, United States in 1846 and the first reported death under anaesthesia in 1847. The best estimation of the rate of anaesthesia-related mortality comes from the anaesthesia mortality review committees in Australia and New Zealand, where data have been collected under essentially consistent definitions since 1960, and reports are amalgamated under the auspices of the Australian and New Zealand College of Surgeons. An internationally accepted definition of anaesthetic mortality is overdue. Extending the time for inclusion of deaths from 24 h to 30 days or longer substantially increases estimated rates of mortality. Attribution of cause of death may be problematic. Even quite small degrees of myocardial injury in patients undergoing non-cardiac surgery increase the risk of subsequent mortality, and in older patients, 30-day all-cause mortality following inpatient surgery may be surprisingly high. Patients should be given a single estimate of the combined risk of surgery and anaesthesia, rather than placing undue emphasis on the risk from anaesthesia alone. Hazards may arise from equipment or from drugs either directly or through error. Error often underlies harmful events in anaesthesia and may be made more likely by fatigue or circadian factors, but violations are also important. Training in expert skills and knowledge, and in human factors, teamwork, and communication is key to improving safety.

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