In two cases, decided within days of each other, both the Supreme Court of New South Wales and the Supreme Court of Western Australia have upheld the right of a competent adult patient to refuse medical treatment, even where that refusal will lead to the patient’s death. The New South Wales decision also deals with the validity of an advance directive made by the patient, and therefore provides much needed guidance on the legal status of these documents.
In the case of Hunter & New England Area Health Service v. A  NSW SC 761, decided by McDougall J of the Supreme Court of New South Wales on 6 August 2009, the Area Health Service sought a declaration from the Court as to whether it would be justified in withholding treatment from Mr A in accordance with an advance directive he had signed a year earlier. Mr A had been admitted to the Area Health Service’s Hospital on 1 July 2009, suffering from septic shock and respiratory failure. He was transferred to the Intensive Care Unit, but failed to respond to treatment. His condition deteriorated and he developed renal failure. By 14 July 2009, Mr A was being kept alive by mechanical ventilation and kidney dialysis.
Mr A was a Jehovah’s Witness. In July 2009, he had visited a solicitor in order to execute a document to appoint Mr T as his enduring guardian who would be authorised to make medical decisions on his behalf should he no longer be able to do so himself. The document signed by Mr A appointing Mr T as his enduring guardian included the following statement:
As one of Jehovah’s Witnesses I direct my guardian to refuse consent for a transfusion of whole blood, red cells, white cells, platelets or blood plasma to be given to me under any circumstances even if health care providers believe that such are necessary to preserve my life or even if any of my family, my relatives or my friends disagrees with my considered and non-negotiable decision…
At the hearing before McDougall J, Mr T also gave evidence that Mr A had completed “work sheets” in August 2008 that listed specific medical procedures and indicated whether Mr A agreed to or refused these treatment should they become necessary. One of these work sheets specifically listed haemodialysis. Mr A had completed the work sheet indicting that he refused to consent to haemodialysis.
In considering whether the Area Health Service was either permitted or obliged to give effect to Mr A’s advance directive, McDougall J noted that there may be a conflict between a competent adult patient’s right of self determination and the interest of society in the preservation of life. However, he also stated that:
…a proper understanding of society’s interest in the preservation of life cannot be considered without taking into account the constituents, or attributes, of life. In a free and democratic society those attributes include the right of autonomy or self-determination”.
He went on to conclude that as long as there is no doubt as to a person’s capacity to make his or her own decision as to medical treatment, and no factor such as misrepresentation that might vitiate that consent, the wishes of a competent adult patient must be respected. However, he emphasised that the Court must feel “a sense of actual persuasion that the individual acted freely and voluntarily, and intended his or her decision to apply to the situation at hand”.
McDougall J noted that if there is genuine and reasonable doubt as to the validity of an advance care directive, or as to whether it applies to the situation at hand, a hospital or medical practitioner should apply promptly to the Court for its aid in determining what should be done. It follows that where the advance directive is clear and unambiguous, there is no necessity to apply to the Court for a declaration prior to the withdrawal of treatment, even if this will lead to the death of the patient.
Similar principles were stated by Martin CJ of the Supreme Court of Western Australia in Brightwater Care Group (Inc) v. Rossiter  WASC229, even though the factual scenario was very different. Brightwater Care Group (Brightwater) operates a residential care facility for people with disabilities in Perth. Mr Rossiter suffered from high level quadriplegia as a result of an accident in March 2008, and had been a patient at the Brightwater Facility since November 2008. According to the evidence presented to the Court, his level of physical disability was profound. He had only limited foot movement and the ability to move one finger. He was only able to talk through a tracheotomy. He was unable to eat or drink, and received nutrition and hydration through a gastrostomy tube.
Despite his physical disabilities, however, the evidence presented to the Court indicated that Mr Rossiter had undiminished mental capacity, and therefore had the capacity to make his own medical treatment decisions.
Over many months, Mr Rossiter had expressed a wish to die, and had asked that his nutrition and general hydration be withdrawn. The consequence of this would be that he would die of starvation. Mr Rossiter had requested that he be given palliative care in the form of pain relief and sedation via his gastrostomy tube following the withdrawal of nutrition.
Because of a concern that the withholding of nutrition might give rise to criminal liability on the part of Bridgewater and the treating clinicians, Bridgewater and Mr Rossiter applied jointly to the Court for declarations as to their respective rights and obligations.
Martin CJ first considered the position at common law, noting that it was well established at common law that an individual has the right to determine what should be done to his or her own body. This right gave rise to the legal requirement to obtain the informed consent of the patient before any medical treatment can be undertaken lawfully. He went on to state:
The corollary of that requirement is that an individual of full capacity is not obliged to give consent to medical treatment, nor is a medical practitioner or other service provider under any obligation to provide such treatment without consent, even if the failure to treat will result in the loss of the patient’s life.
Martin CJ then went on to consider the application of section 262 of the Criminal Code (WA) which provides that it is the duty of every person who has the charge of another person to provide for that other person “the necessaries of life”. He held that this provision did not impose a duty on a treating medical practitioner to provide nutrition and hydration to a patient in the face of the patient’s express refusal of consent. In other words, section 262 does not override the common law principle that a competent patient can choose to withhold consent to any form of medical treatment even where the refusal of treatment will result in death.
Martin CJ concluded that Brightwater would not be criminally responsible for any consequences to the life or health of Mr Rossiter caused by ceasing to administer nutrition and hydration to him, if this was done in accordance with his express and informed consent. His Honour expressed some concern as to whether Mr Rossiter had been given sufficient information to appreciate fully all the consequences of his decision to refuse nutrition and hydration, and therefore directed that he be given further advice by an appropriately qualified medical practitioner about these consequences. It was held that if Mr Rossiter then maintained his wish to refuse nutrition and hydration and this wish was complied with, no issue of liability would arise for Brightwater or the treating medical practitioners.
Because there have been only a small number of previous decisions in Australia that have considered the right to refuse medical treatment, these two decisions provide helpful and much-needed confirmation of the legal position. The fact that neither case involved a patient with an otherwise terminal illness makes it clear that the autonomy of the patient prevails over other considerations as long as the patient is fully competent and able to make a free and informed decision. The recognition of a written advance directive as a valid expression of the patient’s wishes should also reassure doctors that it is both appropriate and lawful to follow an advance directive as long as it is written in clear and unambiguous terms.
Written by Julie Hamblin, Partner
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