Personal autonomy & the Court’s power to order DNA testing

A number of case examples exist where a plaintiff, bringing a claim for damages for personal injury, is asked by a defendant to undergo medical testing. A court may stay the plaintiff’s claim should the plaintiff fail to do so, at least where the testing appears relevant and not greatly invasive.

Less common is a case where a plaintiff seeks an order requiring the defendant to undergo medical testing. Such a case came for consideration recently, in the context of a claim for part of an estate where a DNA test was suggested so as to determine whether the parties were related hence had the same (deceased) father.

In Furesh v Schor [2013] WASCA 231 the Court of Appeal overturned such an order, Newnes JA commented at [50]:

It has for a very long time been established at common law that a person has a right of control and self-determination in respect of his or her body; what is sometimes described as the individual’s right to the inviolability of his or her person. It is a substantial matter to encroach upon that fundamental common law right. In S v S, Lord Reid, Lord Guest and Lord Hodson considered that in light of it the court had no inherent power to order a person of full age and capacity to undergo a blood test. In my view, the position is the same in this case. The taking of a mouth swab of a person, like the taking of a blood sample, impinges upon the bodily integrity of the person. To order such a procedure against the person’s will would be an important inroad into a fundamental right and justice would not be served by such an inroad in the absence of legislative sanction.