Question 1 –
Imagine that s25 of the TAFE Education Act 2002 in your jurisdiction makes it an offence ‘to bring heroin, cannabis, cocaine or any other drug onto a TAFE campus’. The Education Minister said in parliamentary debate that s25 was introduced to prevent drug trafficking on TAFE campuses.
Explain how the common law and statutory rules of interpretation could be applied to the following situations;
(a) Winnie is caught by a security guard as she is licking white aspirin powder. According to the Macquarie Dictionary, aspirin is a drug. Would Winnie be guilty of the offence?
(b) Cisco is caught with his methadone dose that has been legally prescribed from him. Would Cisco be guilty of the offence?
Answer 1 –
The security guard caught Winnie licking the white asprin powder in the TAFE campus.
As defined in the Macquarie Dictionary, asprin can be classified as a drug to be covered under s25 of the TAFE Education Act, 2002. Thus Winnie shall be guilty for the offence under the section.
But to constitute the offence under the s25 of the TAFE Education Act, 2002, there have to be two main ingredients which have to be fulfilled. First, Winnie must “bring” the drug on the TAFE campus, second, there has to be “selling” or “trafficking” of the drug.
Now, it is an established principle given in the case of Regina v. Frank Bera NSWCCA205, that there has to be an established relationship of buyer and seller to constitute to selling or trafficking of the drug. And there are no evidences in that respect as provided in the facts of the case.
Thus Winnie can be convicted for “bringing” the drug on the TAFE campus under s25 of the TAFE Education Act, 2002. But then, there is no evidence of “trafficking”.
The Methadone dose, with which Cisco is caught with, was legally prescribed by a medical practitioner to him, therefore in such a case, there hasn’t been any offence committed and hence Cisco is not guilty.
Further, the drug of Methadone is used as an analgesic, medically. For different indications and symptoms, Methadone is approved by many countries and can be legally prescribed to the patients. Plus, to amount to an offence under s25 of the TAFE Education Act, 2002, the two main ingredients had to be satisfied. These are, “bring” and “selling the drug” or “drug trafficking”. And as the facts are clear that Cisco brought the drug on legal prescription and further, there isn’t any slight evidence that there is a drug trafficking act taking place.
Thus Cisco is not guilty of any offence under s25 of the TAFE Education Act, 2002.
In 1970, Methadone treatment was introduced in Australia and since then all the states in the country started using the treatment to a certain degree. There were many cases of heroin addicted people who regularly wanted this treatment and other options were not there. Due to this limitation for other substitutes, Methadone dose treatments were introduced by the medical practitioners. Moreover, these addicted patients were looked after by non-governmental organisations, various charitable organisations and medical institutions as alcohol and specialist drug substitutes were also under-developed. Further, the heroin intake was increasing and it became necessary to control this as this was a crime which also increased then. Various programs in Queensland and New south Wales had a similar intention towards this treatment. In New South Wales in 1970, Dr Stella Dalton, regarded as the pioneer of methadone treatment in Australia, established an in-patient unit for drug dependent patients in a western suburb of Sydney. She began prescribing methadone. Now, Methadone is being used over all the states and in regard to the present case since there was a legal prescription with Cisco, he cannot be convicted for the offence.
Question 2 –
Aurelie is a successful ballerina but a promising career has been cut short by a serious injury to her right knee. She has torn the anterior cruciate ligament in this knee and requires surgery. She attends the Glades Private Hospital for the surgery to be performed by Dr Stephens. Before being taken to the operating room Aurelie is given a pre-med to relax her. As she is waiting to go into the operating room a nurse checks her details. She is asked which knee is being operated on and in her ‘relaxed’ state points to her left knee. The nurse places a cross on this knee with a coloured pen. Dr Stephens operates on Aurelie’s left knee and finds a perfectly intact cruciate ligament. He then operates on and repairs Aurelie’s right knee. When she awakes she is horrified to find that she cannot move either leg. Advise Aurelie.
Answer 2 –
Issue over here is the damage caused to Aurelie’s knees, that now, she cannot move either of her legs.
Being the operating doctor, Dr. Stephens owed a duty of care towards his patient Aurelie.
Further Dr. Stephens should have foreseen the outcome of operating both the legs simultaneously. Now, it is also a fact that Aurelie misguided the nurse, who was doing her duty, as Aurelie was a bit relaxed and out of negligence she pointed out the wrong knee.
Thus it can be contended that Dr. Stephens failed to take reasonable care due to Aurelie’s wrong indication. Thus this amounts to contributory negligence and here there is a defence available, as the damage caused by operating the left knee was in-evitable.
But, the doctor when operated the right knee then also Aurelie would have undergone, voluntary assumption of risk, and thus this provides the doctor for the right knee too.
Thus Dr. Stephens is not liable in the present case as whatever he did was done under negligence which again was not the outcome of his acts but Aurelie’s misguiding.
But Aurelie can claim for compensation for damages as the doctor, has committed a tort of negligence which has caused Aurelie damage to her knees as even after operating both the knees, why wasn’t she able to move either legs.
The test in Australia was changed by the High Court in the case of ‘Rogers v Whittaker (1992) 175 CLR 479’, where the patient sued a doctor for failing to warn about a slight risk of debilitating side effects following an operation. The court in Australia now do not judge a doctors competence by reference to the generally accepted practices of his profession but whether it conforms to the standard of reasonable care demanded by the law. That means that questions of competence are decided by the court as opposed to any group of doctors.
Thus now, Auriele should be consulting a clinical negligence solicitor where the solicitor would help negotiate for the compensation amount for the personal injury caused to her where even if the injured person would not be restored to her initial state but can be compensated proportionately. Even though the monetary compensation would not be an adequate compensation to the physical injury caused but so is the remedy provided under torts. And further, a fair compensation would involve all the losses suffered presently, future alterations and affects, general damages and also the special damages.