Infants, Lunatics and Married Women: Equitable Protection in Garcia v National Australia Bank
| Date | 01 July 1999 |
| Author | Elizabeth Stone |
| DOI | http://doi.org/10.1111/1468-2230.00226 |
| Published date | 01 July 1999 |
still problematic in its interpretation,48 and judicial paternalism was probably
justifiable in this case, especially if C’s life was subsequently saved. Indeed, if the
inherent jurisdiction could never be used in this way, doctors would have no
power, outside the Mental Health Act, to treat or detain psychiatric or psychotic
patients who were seriously ill and whose behaviour posed a danger to their health
and to others.49 Re C’s safeguards now provide a framework for protection but,
since every case is different, both the medical profession and the courts have
continually to reappraise a teenager’s best interests on a case-to-case basis. Those
safeguards might not always ensure that future decisions on these difficult cases
will necessarily eliminate unnecessary detention or force-feeding. Although it
clarifies many aspects of the law, Re C reinforces the message that an anorexic
adolescent’s autonomy ends where her refusal of medical treatment begins to
endanger her life – that, in some cases, respecting adolescent autonomy may be
simply too high a price to pay.
Infants, Lunatics and Married Women: Equitable
Protection in Garcia vNational Australia Bank
Elizabeth Stone*
The status of the High Court of Australia’s decision in Yerkey vJones1has long
been in doubt. For many years, the decision has been thought to grant special
protection in equity to women who guaranteed their husbands’ debts, preventing
the lender from recovering under the guarantee if the husband had procured her
consent but the wife did not understand the effect of the guarantee. Yerkey vJones
was rejected by the House of Lords in 1993 in Barclays Bank plc vO’Brien,2
which established a broader and, in some respects, quite different doctrine. Several
decisions in the New South Wales Court of Appeal subsequently held that Yerkey v
Jones was no longer good law. Nevertheless, contrary to the expectations of many,
the High Court of Australia recently upheld the principle in Garcia vNational
Australia Bank Ltd.3
The facts in Garcia were fairly typical: Mrs Garcia guaranteed the debts of her
husband’s business, and the guarantee was secured by a mortgage over the
48 Since the scope of the common law powers are not automatically subject to external review, and
problems of interpretation would still have to be resolved, for example on what constitutes ‘secure
accommodation’ in a given situation.
49 Yet one might argue that the Mental Health Act should be used, precisely because of its specific
statutory safeguards. For other commentators expressing this view, see J. Masson n 37 above, 39 in
relation to Re W; and A. Downie ‘A Metropolitan Borough Council vDB and Re C (Detention:
Medical Treatment): Extra-statutory Confinement-Detention and Treatment under the Inherent
Jurisdiction’ (1998) 10 CFLQ 101, 105–106 in relation to Re C and DB.
* University College, Oxford.
1 (1939) 63 CLR 649.
3 (1998) 155 ALR 614.
The Modern Law Review [Vol. 62
604 ßThe Modern Law Review Limited 1999
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