JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: BRIGHTWATER CARE GROUP (INC) -v- ROSSITER [2009] WASC 229
CORAM: MARTIN CJ
HEARD: 14 AUGUST 2009
DELIVERED : 14 AUGUST 2009
PUBLISHED : 20 AUGUST 2009
FILE NO/S: CIV 2406 of 2009
BETWEEN: BRIGHTWATER CARE GROUP (INC)
Plaintiff
AND
CHRISTIAN ROSSITER
DefendantATTORNEY GENERAL OF WESTERN AUSTRALIA
Intervener
FILE NO/S :CIV 2436 of 2009
BETWEEN :CHRISTIAN ROSSITER
Plaintiff
AND
BRIGHTWATER CARE GROUP (INC)
DefendantATTORNEY GENERAL OF WESTERN AUSTRALIA
Intervener
Catchwords:
Legal obligations of a medical service provider which has assumed responsibility for the care of a patient - Patient is a quadriplegic - Patient is mentally competent - Patient has directed medical service provider to discontinue provision of nutrition and general hydration - Consequence of discontinuing provision of nutrition and general hydration will be that patient dies from starvation - Patient also requests prescription of analgesics for the purposes of sedation and pain relief as he approaches death
Provision of declaratory relief in respect of criminality
Common law - Mental capacity - Principle of autonomy or self-determination - Consent to medical treatment - Informed consent - Right of patient to determine whether or not they will continue to receive medical treatment
Criminal Code (WA) - Duty to provide necessaries of life pursuant to s 262 - Interpretation of 'having charge' of another - Surgical and medical treatment within the meaning of s 259 - Amendments pursuant to the Acts Amendment (Consent to Medical Treatment) Act 2008 (WA) - General principles relating to palliative care
Legislation:
Acts Amendment (Consent to Medical Treatment) Act 2008 (WA)
Criminal Code (WA)
Guardianship and Administration Act 1990 (WA)
Interpretation Act 1984 (WA)
Result:
Declarations given
Category: A
Representation:
CIV 2406 of 2009
Counsel:
Plaintiff: Mr J D Allanson SC & Ms J A Thornton
Defendant: Ms L B Black
Intervener: Mr R M Mitchell SC
Solicitors:
Plaintiff: Allens Arthur Robinson
Defendant: Hammond Legal
Intervener: State Solicitor for Western Australia
CIV 2436 of 2009
Counsel:
Plaintiff: Ms L B Black
Defendant: Mr J D Allanson SC & Ms J A Thornton
Intervener: Mr R M Mitchell SC
Solicitors:
Plaintiff: Hammond Legal
Defendant: Allens Arthur Robinson
Intervener: State Solicitor for Western Australia
Amicus Curiae : Mr P O'Meara (Right to Life Association)
Case(s) referred to in judgment(s):
Adult Guardian v Langham [2005] QSC 127; (2006) 1 Qd R 1
Airedale National Health Service Trust v Bland [1993] AC 789
Auckland Area Health Board v Attorney General [1993] 1 NZLR 235
Bouvia v Superior Court of Los Angeles County 179 Cal App 3d 1127 (1986)
Commissioner for Corporate Affairs v Sansom [1981] WAR 32
Commonwealth v Sterling Nicholas Duty Free Pty Ltd [1972] HCA 19; (1972) 126 CLR 297
F v R (1983) 33 SASR 189
Hunter and New England Area Health Service v A [2009] NSWSC 761
Imperial Tobacco v Attorney‑General [1981] AC 718
Malette v Shulman (1990) 67 DLR (4th) 321
Ms B v An NHS Hospital Trust [2002] EWHC 429…
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- Case
- [2009] WASC 229
- Decision Date
CaseChat Overview and Summary
The court was tasked with interpreting the common law principles relating to the provision of medical treatment, particularly in relation to the principle of autonomy and self-determination. It was necessary to consider whether a mentally competent patient has the right to determine whether or not they will continue to receive medical treatment. Furthermore, the court needed to interpret the relevant statutory provisions, particularly those found in the Criminal Code (WA), to determine whether Brightwater Care Group had a duty to provide necessaries of life under section 262. The court also had to interpret the term 'having charge' of another and consider the meaning of surgical and medical treatment within the context of section 259. Amendments made by the Acts Amendment (Consent to Medical Treatment) Act 2008 (WA) were also relevant to the interpretation of the law.
The court found that Mr Rossiter, being mentally competent, had the right to determine whether or not he would continue to receive medical treatment. It held that Brightwater Care Group had no legal obligation to provide nutrition and hydration against his wishes. The court also found that the provision of such treatment would not constitute a breach of any statutory duty under section 262 of the Criminal Code (WA). The court held that Brightwater Care Group was not 'having charge' of Mr Rossiter in the relevant sense and that the administration of palliative care, including the prescription of analgesics, was within the ambit of the patient's autonomy and self-determination. The court further held that the provision of such palliative care would not be criminal under the relevant provisions of the Criminal Code (WA). Ultimately, the court granted the declaratory relief sought by Brightwater Care Group.
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