Hunter and New England Area Health Service v A

[2009] NSWSC 761

Reported Decision: 74 NSWLR 88

New South Wales

Supreme Court

CITATION:	Hunter and New England Area Health Service v A [2009] NSWSC 761
HEARING DATE(S):	15 July 2009
JUDGMENT DATE :	6 August 2009
JURISDICTION:	Equity Division
JUDGMENT OF:	McDougall J at 1
DECISION:	See paragraph [61] of the judgment.
CATCHWORDS:	MEDICINE - medical practitioners - refusal of medical treatment - unconscious patient - advance care directive stating patient's desire to refuse certain treatments - whether directive was a valid indication of patient's desire - capacity - whether patient had capacity to decide to refuse treatment when directive made - patient's right of self-determination even where withdrawal of treatment would have life threatening consequences. - PRACTICE - approach to be taken by medical practitioners - application to court - desirable where uncertainty exists regarding capacity or intention of unconscious patient.
LEGISLATION CITED:	Guardianship Act 1987
CATEGORY:	Principal judgment
CASES CITED:	Airedale NHS Trust v Bland [1993] AC 789 F v R (1983) 33 SASR 189 F v West Berkshire Health Authority (Mental Health Act Commission Intervening) [1990] 2 AC 1 In re AC 573 A 2d 1235 (1990) Malette v Shulman 67 DLR (4th) 321 (1990) Re Bridges [2001] 1 Qd R 574 Re MB [1997] 2 FCR 514 Rogers v Whitaker (1992) 175 CLR 479 Schloendorff v Society of New York Hospital (1914) 211 NY 125
PARTIES:	Hunter and New England Area Health Service (Plaintiff) A by his tutor T (Defendant)
FILE NUMBER(S):	SC 3683/09
COUNSEL:	G M Gregg (Plaintiff)
SOLICITORS:	Director, Legal & Legislation and General Counsel NSW Health (Plaintiff)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

McDOUGALL J

6 August 2009

3683/08 HUNTER NEW ENGLAND AREA HEALTH SERVICE v A by his tutor T

JUDGMENT

1 HIS HONOUR: When these proceedings were heard, the defendant (Mr A) was a patient in a hospital conducted by the plaintiff (the Service). He had been admitted to the emergency department of the hospital on 1 July 2009, suffering from septic shock and respiratory failure and showing a decreased level of consciousness. He was transferred to the Intensive Care Unit the following day. Although all appropriate treatment had been given to Mr A, his condition deteriorated and he developed renal failure. By 14 July 2009, Mr A was being kept alive by mechanical ventilation and kidney dialysis.

2 On 14 July 2009, the Service became aware that a document apparently prepared by Mr A a year earlier, on 19 August 2008, indicated that he would refuse dialysis. In those circumstances, the Service commenced these proceedings seeking (by its amended summons filed on 15 July 2009) declarations to the effect that the document to which I have referred was a valid “Advance Care Directive” given by Mr A, and that it would be justified in complying with his wishes as expressed in that directive.

3 I made the declarations as sought, and said that I would give my reasons for doing so at a later date. These are my reasons.

What this case does and does not involve

4 This case is concerned, at the level of principle, with the right of a capable adult to refuse medical treatment; and, at the particular level, with the question of whether the advance care directive prepared by Mr A was a valid exercise of that right. It is not concerned with any such notion as “the right to die”. That is so even if (as it appears is the case) the likely consequence of giving effect to Mr A’s wishes, as expressed in the advance care directive, is that he will die.

Right to choose: the principles

The relevant interests

5 The common law recognises two relevant but in some cases conflicting interests:

(1) a competent adult’s right of autonomy or self–determination: the right to control his or her own body; and

(2) the interest of the State in protecting and preserving the lives and health of its citizens.

6 In Schloendorff v Society of New York Hospital (1914) 211 NY 125, Cardozo J said at 129 that “[e]very human being of adult years and sound mind had has a right to determine what shall be done with his own body”.

7 In a somewhat different context, King CJ in F v R (1983) 33 SASR 189 at 193 identified “the paramount consideration that a person is entitled to make his own decisions about his life”. His Honour’s statement was cited with approval by Mason CJ, Brennan, Dawson, Toohey and McHugh JJ in Rogers v Whitaker (1992) 175 CLR 479 at 487.

8 Cardozo J’s statement has been cited and applied in many cases. Thus, in Malette v Shulman 67 DLR (4^th) 321 (1990), Robins JA, speaking with the concurrence of Catzman and Carthy JJA, said at 328 that “[a] competent adult is generally entitled to reject a specific treatment or all treatment, or to select an alternate form of treatment, even if the decision may entail risks as serious as death and may appear mistaken in the eyes of the medical profession or of the community. … it is the patient who has the final say on whether to undergo the treatment”.

The conflict

9 The competing interests, and the possibility of conflict, were recognised by Lord Donaldson of Lymington MR in Re T [1993] Fam 95 at 112. His Lordship pointed out that there may be (and was in the case before the Court) a conflict between a competent adult patient’s right of self-determination and the interest of society in the preservation of life. His Lordship recognised that, at least when other factors did not tip the balance one way or the other, the individual patient’s right was paramount. Nonetheless, his Lordship said, if there were doubt as to the individual’s expression of preference, “that doubt falls to be resolved in favour of the preservation of life”.

10 Butler-Sloss LJ, who agreed with the general propositions of law stated by the Master of the Rolls, said at 116 that “[a] man or woman of full age and sound understanding may choose to reject medical advice and medical or surgical treatment either partially or in its entirety. A decision to refuse medical treatment by a patient capable of making the decision does not have to be sensible, rational or well considered”. Her Ladyship expressly agreed with the reasoning of the Court of Appeal of Ontario in Malette. (The Master of the Rolls had referred to Malette, without any apparent disapproval, at 114.)

11 The third member of the Court, Staughton LJ, expressed himself in similar terms. He said at 120-121 that “[a]n adult whose mental capacity is unimpaired has the right to decide for herself whether she will or will not receive medical or surgical treatment, even in circumstances where she is likely or even certain to die in the absence of treatment. Thus far the law is clear.”

12 Malette concerned what it is convenient to call an advance care directive. Ms Malette was a Jehovah’s Witness. She carried with her a card stating her adherence to that faith, and stating in no uncertain terms that, whilst understanding the implications of her decision, she did not wish blood or blood products to be administered to her under any circumstances. The Court of Appeal held that the defendant, Dr Shulman, who had express notice of the terms of that card, was not entitled to disregard it.

13 Re T was a different case. The plaintiff, Ms T, gave what the trial judge found was an oral directive refusing blood transfusion after she had been admitted to hospital, and when (on the medical evidence) her life was in danger if she were not transfused. She had been a Jehovah’s Witness, but there was some reason to doubt the continuing strength of her adherence to the tenets of that creed. The questions to be decided by the Court of Appeal were whether that oral directive was an expression of Ms T’s free will, and whether it applied to the situation at hand. The Court answered both questions in the negative.

14 In Malette, Robins JA pointed out at 328 that the recognition of the freedom of competent adults to make choices about their medical care necessarily encompassed recognition of the right “to make choices that accord with their own values regardless of how unwise or foolish those choices may appear to others”. It follows that a medical practitioner confronted with a clear choice made by a competent adult on the basis of social, religious or moral values must respect that choice, even though the practitioner does not share the values underpinning it.

15 Indeed, even a decision lacking any apparent justification must be respected. See Lord Donaldson in Re T at 113: “the patient’s right of choice exists whether the reasons for making that choice are rational, irrational, unknown or even non-existent”. However, the lack of any discernible basis for a decision to refuse treatment may be something to take into account in assessing the competence or validity of the decision.

16 Recognition of the right to reject medical treatment does not depreciate the value of life. As Robins JA said in Malette at 334, “[i]ndividual free choice and self-determination are themselves fundamental constituents of life. To deny individuals freedom of choice with respect to their health care can only lessen, and not enhance, the value of life”. His Lordship’s analysis – with which, respectfully, I agree – raises a question as to the extent of the tension between the individual and state interests that I identified at [5] above. Clearly, Lord Donaldson thought that there was such a tension (Re T at 112: see at [9] above). Were it necessary to resolve the tension, I would conclude, with Robins JA in Malette, 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. Thus, one would think, the concept of “life” that is the subject of the State’s interest is a concept that has annexed to it that right (no doubt, among others). But, it being unnecessary to resolve that issue for the purpose of these reasons, I will say no more.

Supremacy of the individual’s right

17 It is in general clear that, whenever there is a conflict between a capable adult’s exercise of the right of self-determination and the State’s interest in preserving life, the right of the individual must prevail. (I note, but leave to one side, because it does not arise in this case, the situation where the State takes drastic action to deal with a widespread and dangerous threat to the health of its citizens at large.) In Airedale NHS Trust v Bland [1993] AC 789, Lord Keith of Kinkel said at 859 that the State’s interest is not absolute, and does not compel treatment of a patient contrary to the patient’s express wishes. In the same case, Lord Goff said at 864 that:

“it is established that the principle of self-determination requires that respect must be given to the wishes of the patient, so that if an adult of sound mind refuses, however unreasonably, to consent to treatment or care by which his life would or might be prolonged, the doctors responsible for his care must give effect to his wishes, even though they do not consider it to be in his best interests to do so. … [t]o this extent, the principle of the sanctity of human life must yield to the principle of self-determination… “.

18 Lord Mustill expressed himself to similar effect at 894.

19 There may be an exception to the principle that a capable adult’s right of self-determination is paramount. Lord Donaldson in Re T at 102 noted, as a “possible qualification” to the paramountcy of that right, “a case in which the choice may lead to the death of a viable foetus”.

20 Brown P was faced with precisely that situation in Re S [1993] Fam 123. In that case, his Lordship said at 124, the medical evidence was “emphatic” that a particular operation was necessary to save the mother’s life, and the life of her unborn child. He said that the child could not be born alive if the operation were not carried out. In those circumstances, Brown P declared that the operation and any necessary consequential treatment could lawfully be performed despite the mother’s refusal of consent.

21 That situation has been recognised in the American courts, including by the Court of Appeals of the District of Columbia in In re AC 573 A 2d 1235 (1990). Terry J, for the majority, noted at 1246 that there were “rare cases in which a patient’s right to decide her own course of treatment has been judicially overridden”. That was usually done “to vindicate the state’s interest in protecting third parties, even if in fetal state”. His Honour cited a number of authorities. In that case, Belson J dissented in part. The point of his Honour’s dissent was to emphasise, more than he thought the majority judgment had done, the State’s interest in protecting the interests of a viable unborn child (see at 1254-1255).

22 Since the question does not arise in this case, it is neither desirable nor necessary that I should explore it further.

Capacity

23 There is a presumption of capacity, whereby an adult “is presumed to have the capacity to consent to or to refuse medical treatment unless and until that presumption is rebutted”(see Butler-Sloss LJ in Re MB [1997] 2 FCR 514 at 553).

24 In this context, it is necessary to bear in mind that there is no sharp dichotomy between capacity on the one hand and want of capacity on the other. There is a scale, running from capacity at one end through reduced capacity to lack of capacity at the other. In assessing whether a person has capacity to make a decision, the sufficiency of the capacity must take into account the importance of the decision (as Lord Donaldson pointed out in Re T at 113). The capacity required to make a contract to buy a cup of coffee may be present where the capacity to decide to give away one’s fortune is not.

25 As Butler-Sloss LJ said in Re MB at 553 – 554, in deciding whether a person has capacity to make a particular decision, the ultimate question is whether that person suffers from some impairment or disturbance of mental functioning so as to render him or her incapable of making the decision. That will occur if the person:

(1) is unable to comprehend and retain the information which is material to the decision, in particular as to the consequences of the decision; or

(2) is unable to use and weigh the information as part of the process of making the decision.

Vitiation of consent

26 An apparent consent (or refusal of consent) may be ineffective for a number of reasons. First, the individual concerned may not have been competent in law to give or refuse that consent. Secondly, even if the individual were competent in law, the decision may have been obtained by undue influence (as, the Court of Appeal found, had happened in Re T) or some other vitiating means. Thirdly, the apparent consent or refusal may not extend to the particular situation (which was the basis on which the primary judge in Re T rested his decision; and the Court of Appeal agreed with this aspect of his reasoning). This was indeed one of the arguments advanced for Dr Shulman in Malette. Fourthly (and to some extent this overlaps with the previous category) the terms of the consent or refusal may be ambiguous or uncertain.

27 I referred in the second category to undue influence or other vitiating factors. It has been suggested that a refusal of medical treatment will be vitiated if it is based on incorrect information or an incorrect assumption. Thus, in Re T, Ms T was told that there would be effective alternatives to blood transfusion, and that it was unlikely that it would be necessary to transfuse her; whereas in fact the likelihood of transfusion was high (Ms T was to undergo a caesarean section) and there were no adequate alternatives to transfusion.

28 Another factor that has been suggested to vitiate refusal of treatment is the absence of, or failure to provide, adequate information. I do not accept the proposition that, in general, a component adult’s clearly expressed advance refusal of specified medical procedures or treatment should be held to be ineffective simply because, at the time of statement of the refusal, the person was not given adequate information as to the benefits of the procedure or treatment (should the circumstances making its administration desirable arise) and the dangers consequent upon refusal. As I have said, a valid refusal may be based upon religious, social or moral grounds, or indeed upon no apparent rational grounds; and is entitled to respect (assuming of course that it is given freely, by a competent adult) regardless. But more fundamentally, the concept of informed refusal seems to me to involve some degree of confusion.

29 There is no doubt that an apparent consent to medical treatment may be vitiated if, there being an adequate opportunity explanation of the treatment and its benefits and dangers, no proper explanation is given. See, for example, Rogers v Whitaker (1992) 175 CLR 479 at 489, where Mason CJ, Brennan, Dawson Toohey and McHugh JJ said (omitting citations) that “all medical treatment is preceded by the patient’s choice to undergo it. In legal terms, the patient’s consent to the treatment may be valid once he or she is informed in broad terms of the nature of the procedure which is intended. But the choice is, in reality, meaningless unless it is made on the basis of relevant information and advice… it would be illogical to hold that the amount of information to be provided by the medical practitioner can be determined from the perspective of the practitioner alone or, for that matter, of the medical profession”.

30 In circumstances where it is practicable for a medical practitioner to obtain consent to treatment, then, for the consent to be valid, it must be based on full information, including as to risks and benefits. But the question with which I am concerned is whether an advance refusal of consent to certain specified forms of medical treatment equally needs to be supported by the provision of all adequate information. The reason for obtaining consent to treatment is to justify in law what would otherwise be a battery (I leave aside the emergency situation where consent cannot be obtained). A consent that is based on misleading information is clearly of no value; and a consent based on insufficient information is not much better. But once it is accepted that religious, social or moral convictions may be of themselves an adequate basis for a decision to refuse consent to medical treatment, it is clear that there is no reason that a decision made on the basis of such values must have taken into account the risks that may follow if a medical practitioner respects and acts upon that decision. This is so a fortiori where there is no discernible rational basis for the decision. No question arises of justifying what would otherwise be unlawful, and factors to be taken into account in determining whether something is or is not unlawful do not have application by analogy.

The emergency principle

31 Where it is not practicable for a medical practitioner to obtain consent for treatment, and where the patient’s life is in danger if appropriate treatment is not given, then treatment may be administered without consent. This is justified by what is sometimes referred to as the “emergency principle” or “principle of necessity”.

32 Lord Donaldson referred to the “the classic emergency situation with an unconscious patient” in Re T at 103. His Lordship said that, in such a situation, “the practitioner can lawfully treat the patient in accordance with his clinical judgment of what is in the patient’s best interests”. Staughton LJ referred to “the principle of necessity” in the same case at 121. His Lordship referred to the speech of Lord Goff of Chieveley in F v West Berkshire Health Authority (Mental Health Act Commission Intervening) [1990] 2 AC 1 at 25 – 26. Lord Goff said that, for the principle of necessity to apply, two conditions must be met:

(1) There must be “a necessity to act when it is not practicable to communicate with the assisted person”; and

(2) “the action taken must be such as a reasonable person would in all the circumstances take, acting in the best interests of the assisted person”.

33 I would add to his Lordship’s first condition the words “or some other person authorised to give consent on behalf of the assisted person”.

34 However, Lord Goff pointed out, the principle of necessity does not apply where, among other things, the proposed action “is contrary to the known wishes of the assisted person, to the extent that he is capable of rationally forming such a wish”. It follows that the principle of necessity cannot be relied upon to justify a particular form of medical treatment where the patient has given an advance care directive specifying that he or she does not wish to be so treated, and where there is no reasonable basis for doubting the validity and applicability of that directive.

Approach to be taken

35 What approach should the courts take in assessing what is said to be an advance refusal of medical care? This question cannot be answered in the abstract. In some cases – and, at least to the Court of Appeal, Re T seems to have been such a case – the circumstances will be such that careful analysis is required.

36 It is proper, and not inconsistent with an individual’s right of self-determination, that if there is any real doubt as to the sufficiency of an advance refusal of medical treatment, the court should undertake a careful analysis. But the analysis should start by respecting the proposition that a competent individual’s right to self-determination prevails over the State’s interest in the preservation of life even though the individual’s exercise of that right may result in his or her death. An over-careful scrutiny of the material may well have the effect of undermining or even negating the exercise of that right.

37 It is necessary to bear in mind that not all those who execute advance care directives are legally trained. Their words should not be scrutinized with the care given to a particularly obscure legislative expression of the will of Parliament. On the other hand, particularly bearing in mind the likely consequences of upholding an apparent exercise of the right of self-determination, 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. As Robins JA pointed out in Malette at 337, if a medical practitioner is to act on doubts as to the validity of an advance refusal of medical treatment, those doubts must be rationally founded. The same applies to a court asked to determine the validity of an advance refusal of medical treatment. It cannot be correct to recognise, on the one hand, an individual’s right of self determination; but, on the other, effectively to undermine or take away that right by over-nice or merely speculative analysis.

The Guardianship Act 1987

38 As will be seen, Mr A had executed an instrument in writing appointing two people, his tutor in these proceedings Mr T and a Mr L, to be his guardians jointly and severally. The appointment was expressed to be enduring (see s 6D of the Guardianship Act 1987). By that appointment, Mr A authorised each of his enduring guardians, among other things, to decide what health care he should receive and to consent to the carrying out on him of medical or dental treatment.

39 By s 6A of the Guardianship Act, an appointment under Pt 2 (which is the part of the Act under which Mr A appointed Messrs T and L) has effect during such period of time as the appointor is a person in need of a guardian. By s 3(1) a “person in need of a guardian” is “a person who, because of a disability, is totally or partially incapable of managing his or her person”. It is not necessary to set out, or to consider, the statutory concept of “disability” (see s 3(2) of the Guardianship Act); nor is it necessary to consider the relationship between the statutory concepts of a person having a disability (s 3(2)) and a person incapable of giving consent (s 33(2)). That is because, if the appointment of Messrs T and L as enduring guardians had effect (which it would if Mr A were a person who had a disability), the mechanism for obtaining consent from Mr T or Mr L has not been invoked (see s 40). I do however note that, for the purposes of Pt 5 (see, for example, s 37, and in particular subs (3)(b)), a person is taken to object to the carrying out of medical treatment if, among other things, that person has previously indicated, in similar circumstances, that he or she did not then want the treatment to be carried out, and has not subsequently indicated to the contrary (s 33(3)(b)). Thus, to some extent and for some purposes, the Guardianship Act may give recognition to advance care directives.

Summary of principles

40 There does not appear to be a great body of authority in Australia dealing with the relevant principles. (The decision of Ambrose J in Re Bridges [2001] 1 Qd R 574 focused on relevant Queensland legislation, and on its application on the facts of that case.) Accordingly, to assist those faced with emergency care decisions, I summarise my understanding of the relevant principles (whilst acknowledging that what I say will not apply in every conceivable circumstance):

(1) except in the case of an emergency where it is not practicable to obtain consent (see at (5) below), it is at common law a battery to administer medical treatment to a person without the person’s consent. There may be a qualification if the treatment is necessary to save the life of a viable unborn child.

(2) Consent may be express or, in some cases, implied; and whether a person consents to medical treatment is a question of fact in each case.

(3) Consent to medical treatment may be given:

by the person concerned, if that person is a capable adult;
by the person’s guardian (under an instrument of appointment of enduring guardian, if in effect; or by a guardian appointed by the Guardianship Tribunal or a court);
by the spouse of the person, if the relationship between the person and the spouse is close and continuing and the spouse is not under guardianship; by a person who has the care of the person; or
by a close friend or relative of the person.


(4) At common law, next of kin cannot give consent on behalf of the person. However, if they fall into one or other of the categories just listed (and of course they would fall into at least the last) they may do so under the Guardianship Act .

(5) Emergency medical treatment that is reasonably necessary in the particular case may be administered to a person without the person’s consent if the person’s condition is such that it is not possible to obtain his or her consent, and it is not practicable to obtain the consent of someone else authorised to give it, and if the person has not signified that he or she does not wish the treatment, or treatment of that kind, to be carried out.

(6) A person may make an “advance care directive”: a statement that the person does not wish to receive medical treatment, or medical treatment of specified kinds. If an advance care directive is made by a capable adult, and is clear and unambiguous, and extends to the situation at hand, it must be respected. It would be a battery to administer medical treatment to the person of a kind prohibited by the advance care directive. Again, there may be a qualification if the treatment is necessary to save the life of a viable unborn child.

(7) There is a presumption that an adult is capable of deciding whether to consent to or to refuse medical treatment. However, the presumption is rebuttable. In considering the question of capacity, it is necessary to take into account both the importance of the decision and the ability of the individual to receive, retain and process information given to him or her that bears on the decision.

(8) If there is genuine and reasonable doubt as to the validity of an advance care directive, or as to whether it applies in the situation at hand, a hospital or medical practitioner should apply promptly to the court for its aid. The hospital or medical practitioner is justified in acting in accordance with the court’s determination as to the validity and operation of the advance care directive.

(9) Where there is genuine and reasonable doubt as to the validity or operation of an advance care directive, and the hospital or medical practitioner applies promptly to the court for relief, the hospital or practitioner is justified, by the emergency principle, in administering the treatment in question until the court gives its decision.

(10) It is not necessary, for there to be a valid advance care directive, that the person giving it should have been informed of the consequences of deciding, in advance, to refuse specified kinds of medical treatment. Nor does it matter that the person’s decision is based on religious, social or moral grounds rather than upon (for example) some balancing of risk and benefit. Indeed, it does not matter if the decision seems to be unsupported by any discernible reason, as long as it was made voluntarily, and in the absence of any vitiating factor such as misrepresentation, by a capable adult.

(11) What appears to be a valid consent given by a capable adult may be ineffective if it does not represent the independent exercise of persons volition: if, by some means, the person’s will has been overborne or the decision is the result of undue influence, or of some other vitiating circumstance.

41 I have spoken above in terms of medical treatment, and hospitals and medical practitioners. However, the principles apply more broadly: to all those (including ambulance officers and paramedics) who administer medical treatment. They extend further to other forms of treatment (for example, dental treatment) where, without consent, the treatment would constitute a battery.

Mr A appoints enduring guardians

42 On 5 July 2009, Mr A attended a solicitor, Mr N. Mr N had had a number of clients who were Jehovah’s Witnesses. He said that, when he was instructed to prepare appointments of enduring guardians for Jehovah’s Witnesses, it was his practice to explain to them the risks attending refusal of blood transfusion. In this case, the form of appointment expressly stated:

I REQUIRE THAT EACH OF MY ENDURING GUARDIANS EXERCISE HIS OR HER FUNCTIONS SUBJECT TO THE FOLLOWING DIRECTIONS:
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 it any of my family, my relatives, or my friends, disagrees with my considered and non-negotiable decision. I ALSO DIRECT my guardian to refuse any pre-donation and storage of my blood for later infusion under any circumstances.

43 However, Mr N said, he did not explain the risk of refusing dialysis, because in his understanding, it was unclear whether, according to the beliefs held by Jehovah’s Witnesses, there was any biblical proscription of this form of treatment.

44 Mr N said further that he knew that congregations of Jehovah’s Witnesses had a practice making available to members documents described as “Worksheet 1” and “Worksheet 2”, by which those members could indicate their attitude to various forms of medical treatment specified in the worksheets. However, Mr N did not give those worksheets to Mr A.

The worksheets

45 There were in evidence two documents – Worksheet 1 and Worksheet 2 – completed with the full name and then address of Mr A, and dated 19 August 2008. Mr T identified those documents as having been completed by Mr A. By Worksheet 1, Mr A indicated that he would refuse five specified forms of medical treatment, but that he would accept one other. It is not necessary to go to the details.

46 Worksheet 2 concerned, on its face:

“Procedures involving the medical use of your own blood”

47 It stated that:

“[t]he methods of applying each of these medical procedures vary from physician to physician. You should have your physician explain exactly what is involved in any proposed procedure to ensure that it is in harmony with Bible principles and with your own conscientious decisions.”

48 There then followed three columns. The first was headed “Name of Treatment”. The second was headed “What It Accomplishes”. The third was headed “Choices You Need to Make”. Under the heading of the third column appear words which, so far as they are legible, read: “(you might want to speak to your physician before authorising or refusing any of these procedures)”. Under the first column, some eight different treatments were specified, including, as the fourth, “Dialysis”. The explanation given to this treatment was:

“Functions as an organ. In haemodialysis, blood circulates through a machine that filters and cleans it before returning it to the patient”.

49 Under the third column, three alternative choices were specified:

I accept
I might accept *
I refuse

50 For “Dialysis”, Mr A ticked the third of those choices (as, to the extent that it is relevant, he did for all but one of the other procedures).

51 Mr T, who was a member of the same congregation as Mr A, and who may be inferred to be a friend of Mr A, said that Worksheet 2 reflected Mr A’s wishes. It is apparent that, in Mr T’s view, this was so not only at the time the document was prepared but also at all material times thereafter.

52 Mr T said further that, in his opinion, Mr A was perfectly capable of making up his own mind both as at 19 August 2008 and at the time he was admitted to the hospital.

53 Considering the evidence as a whole, I am satisfied that Worksheet 2 did represent Mr A’s considered views. Mr T said that Mr A “was a simple man with an uncomplicated way of living however he was adamant about the things he didn’t want”. On the basis of Mr T’s evidence and Worksheet 2, I am satisfied that dialysis was indeed one of the things that Mr A “didn’t want”.

Application of the principles to the facts

54 I conclude that Worksheet 2 represents a considered decision made by Mr A, and that when Mr A made that decision (and, to the extent that it may be relevant, when he was admitted to hospital), Mr A was in law capable of making the decision to refuse dialysis.

55 I do not know whether the decision to refuse dialysis was based on some religious principle, although there is a basis in the evidence for inferring that it was. But, regardless, it is a considered decision made by a person of legal capacity.

56 Returning to the principles, I consider that Worksheet 2 in general, and the advance refusal of dialysis in particular, represent Mr A’s prospective exercise of his right of self-determination: his right to decide what should be done to his own body. There is nothing in the evidence to suggest that his expression of intent was vitiated in any way. On the contrary, it seems to me to be clear that it was his own voluntary decision.

57 Thus, in my view, the intention expressed in Worksheet 2 was one to which the hospital was required to give effect. To put the matter negatively: I think that Worksheet 2 meant that the hospital could not be taken to have been authorised, by the emergency principle or otherwise, to administer dialysis to Mr A.

58 That is not a criticism of the hospital. The worksheets that were provided to it were not signed by Mr A, although on Mr T’s evidence they had been completed by Mr A in his own handwriting. Further, there is perhaps some tension between the appointment of enduring guardians – which, as I have said, explicitly prohibits only blood transfusion – and the form of the worksheets. In my view, in circumstances where Mr A was unable to give instructions (because he was unable to communicate), the hospital acted rightly in taking steps to preserve his life whilst seeking the Court’s decision. In this regard, I respectfully agree with what Lord Donaldson MR said in Re T at 115:

“If in a potentially life threatening situation or one in which irreparable damage to the patient’s health is to be anticipated, doctors or hospital authorities are faced with a refusal by an adult patient to accept essential treatment and they have real doubts as to the validity at that refusal, they should in the public interest, not to mention that of their patient, at once seek a declaration from the courts as to whether the proposed treatment would or would not be lawful.”

59 At 116, his Lordship, in a summary of his view as to the legal principles applicable, said that “[i]n cases of doubt as to the effect of a purported refusal of treatment, where failure to treat threatens the patient’s life or threatens irreparable damage to his health, doctors and health authorities should not hesitate to apply to the courts for assistance”.

60 On the basis of the medical evidence, I accept that the result of withdrawal of dialysis will be to hasten Mr A’s death. That is a consequence of the decision that he made, as signified in Worksheet 2. What my orders did was recognise his right to make that decision. As I said towards the outset of these reasons, it is no recognition of a “right to die”.

Conclusion

61 For those reasons, the hospital was entitled to the declarations sought.

62 It is appropriate, before I conclude these reasons, to acknowledge (as I did when I made the declarations sought) the assistance that the Court received. I refer not only to the efforts of Mr Gregg of counsel and his instructing solicitor Ms Richards (who between them, in a short time, were able to amass a helpful body of authorities and other material, and to put before the Court the evidence that I have summarised), but also Mr T and Mr N. Both those gentleman responded, on very short notice, to questions from Ms Richards. They were able to give her information which she put before the Court in an affidavit sworn by her on information and belief. That affidavit provided much of the foundation for the factual findings that I have made.

63 Finally, I acknowledge the responsible attitude taken by the hospital, and in particular by the treating doctor, Dr D. Dr D swore an affidavit that was read in the proceedings, and which is the other major basis for the factual findings that I have made.

**********