The "Unfortunate Experiment": Evaluating the Protection of Autonomy and Self-Determination in New Zealand

Abstract

This paper argues that the right to a person’s autonomy and self-determination was not properly protected under New Zealand law at the time the clinical research was conducted by Dr. Green. In preparation for examining Dr. Green’s liability in the light of legal and ethical principles under national and international standards, a short outline of the events will be provided first. For this purpose, the arguments put forward by Sandra Coney and Phillida Bunkle in their cover story in Auckland’s Metro magazine 8 will be analysed and the Judge Cartwright’s findings and recommendations briefly considered. Subsequently the counter-arguments brought forward by Professor Linda Bryder9 will be discussed with particular regard to the problematical discussion of a doctor’s duty to disclose and his therapeutic privilege to withhold information in certain situations. The paper then addresses the cases of Matheson v Green10 and A v Bottrill11 in order to assess the importance of awarding exemplary damages to deter and punish medical malpractice cases, besides the compensatory scheme of the Accident Compensation Corporation. Next, the paper proves that, although international guidelines existed at the time the clinical trial took place it was not sufficient to prevent Professor Green from conducting his research on women without consent. The paper concludes that although certain international recommendations and precedents from other common law countries existed, the New Zealand approach with regard to informed consent was weak and offered a breeding ground for medical misconduct.