Australian Capital Territory v JT

[2009] ACTSC 105

HUMAN RIGHTS ACT

AUSTRALIAN CAPITAL TERRITORY v JT
[2009] ACTSC 105 (28 August 2009)

DECLARATION – advisory opinion – parens patriae jurisdiction of the court – whether it is lawful for the plaintiff not to administer nutrition and hydration other than is necessary for the provision of palliative care
MEDICAL TREATMENT – patient suffers from paranoid schizophrenia characterised by religious obsessions – patient resists medication – patient’s fasting amounts to starvation and is life threatening – patient on Guardianship and Psychiatric Treatment Orders
MENTAL CAPACITY – consent to medical treatment – free and informed consent – patient’s wishes based on a delusional set of assumptions

Criminal Code Compilation Act 1913 (WA), ss 259, 262
New Zealand Bill of Rights Act 1990
Human Rights Act 2004 (ACT), ss 9, 10
Mental Health (Treatment and Care) Act 1994 (ACT)
Australian Capital Territory (Self-Government) Act 1988 (Cth), s 48A

Brightwater Care Group (Inc) v Rossiter [2009] WASC 229
Imperial Tobacco Ltd v Attorney-General [1981] AC 718
Auckland Area Health Board v Attorney-General [1993] 1 NZLR 235
Adult Guardian v Langham [2005] QSC 127
Airedale National Health Service Trust v Bland [1993] AC 789
Re T [1992] 3 WLR 782
Re S [1992] 3 NZLR 363
Re G [1997] 2 NZLR 201
Pallin v Department of Social Welfare [1983] NZLR 266
Re X [1991] 2 NZLR 365
F v West Berkshire HA [1989] 2 WLR 1025
Secretary, Department of Health and Community Services v JWB & SMB (Marion’s Case) (1992) 175 CLR 218
In re B (A Minor) (Wardship: Medical Treatment)  [1981] 1 WLR 1421
In re J (A Minor) (Wardship: Medical Treatment)  [1991] 2 WLR 140
Messiha v South East Health [2004] NSWSC 1061
Northridge v Central Sydney Area Health Service (2000) 50 NSWLR 549
Krommydas v Sydney West Area Health Service [2006] NSWSC 901
Re BWV; Ex parte Gardner (2003) 7 VR 487
Hunter and New England Area Health Service v A [2009] NSWSC 761

No. SCC 745 of 2009

Judge:             Higgins CJ
Supreme Court of the ACT

Date:              28 August 2009

IN THE SUPREME COURT OF THE       )
  )          No. SCC 745 of 2009
AUSTRALIAN CAPITAL TERRITORY    )          

AUSTRALIAN CAPITAL TERRITORY

(Plaintiff)

v

JT

(Defendant)

ORDER

Judge:  Higgins CJ
Date:  28 August 2009
Place:  Canberra

THE COURT ORDERS THAT:

1. The application be refused.

1. This is an application by the plaintiff (the Territory) for a declaration that it is lawful for medical practitioners employed by the Territory to desist from affording other than palliative care to the plaintiff (JT).

1. JT is a 69 year old man of Romanian birth.  He is a long term resident of Australia and the Australian Capital Territory.  He came to attention of ACT Mental Health authorities in May 1992.  He severely injured himself falling from his upstairs flat in the belief that he could fly like a dove.  He was found to be chronically psychotic suffering from paranoid schizophrenia characterised by religious obsessions.  There was a psychiatric history dating back many years.

1. At that time medication…