Northridge v Central Sydney Area Health Service

NEW SOUTH WALES SUPREME COURT

CITATION: Northridge v Central Sydney Area Health Service [2000] NSWSC 1241 revised - 17/01/2001

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): 10583/00

HEARING DATE{S): 13/03/00; 15/03/00; 11/04/00; 18/04/00; 3/05/00; 1/06/00

JUDGMENT DATE: 29/12/2000

PARTIES:
Annette Northridge v Central Sydney Area Health Service

JUDGMENT OF: O'Keefe J

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:
BW Rayment QC and P Dwyer - Plaintiff
D Higgs SC and D Inverarity - Defendant

SOLICITORS:
Stewart and Mills - Plaintiff
Phillips Fox - Defendant

CATCHWORDS:
Medicine
Hospital
Medical treatment
Insensate patient
Patient treatment
Scope of
Vegetative state
Diagnosis
Need for standard and guidelines
Parens patriae jurisdiction of Supreme Court
Withdrawal of treatment and feeding
Not for Resuscitation Order
Practice
Relief
Costs
Common fund basis.

ACTS CITED:
Supreme Court Act 1970 s 22
Guardianship Act 1987
Supreme Court Rules Pt 52 rr 1, 17, 30, 31, 33. Pt 63 r 4.
4 George IV c.96
Third Charter of Justice

DECISION:
1. Until further order, and whilst ever John Robert Thompson remains in a hospital or other institution within the area and under the control of the Defendant; (a) John Robert Thompson be provided with necessary and appropriate medical treatment directed towards the preserving of his life and the promoting of his good health and welfare; (b) no Not for Resuscitation Order be made in respect of John Robert Thompson without prior leave of the court.
2. The Defendant to pay the Plaintiff's costs on a common fund basis.
3. The proceedings to stand over generally with leave to restore on seven days notice.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

O’KEEFE J

29 DECEMBER 2000

No: 10583 of 2000 - ANNETTE NORTHRIDGE v CENTRAL SYDNEY AREA HEALTH SERVICE

JUDGMENT

HIS HONOUR:
BACKGROUND

At 2.56pm on Sunday 12 March 2000 as Duty Judge I received a telephone call at my home from the Security Officer on duty at the Supreme Court. He advised that Mrs. Annette Northridge had rung the court seeking an order preventing the administration of Royal Prince Alfred Hospital, Camperdown from withdrawing treatment and life support from a patient in the hospital who she claimed would die if not treated and supported. I advised the Security Officer that I would consider the matter and contact him as soon as possible.
I formulated 14 questions, contacted the Duty Security Officer, dictated them to him and requested that he submit them to Mrs Northridge and let me have her answers as quickly as possible. The questions were as follows:
(1) Name of the patient.
(2) Hospital.
(3) The disease or disorder from which the patient was suffering.
(4) The age of the patient.
(5) How long the patient had been suffering from the disease or disorder.
(6) The nature of the treatment required.
(7) Whether the patient was conscious.
(8) Whether the patient had formally refused consent to treatment.
(9) If the patient had refused consent, had the patient given reasons?
(10) What would happen to the patient if the application made by Mrs. Northridge was not heard before 10 am on Monday 13 March 2000?
(11) What was the attitude of the hospital?
(12) Does the patient have his or her own doctor and, if so, who is it and how can that doctor be contacted?
(13) Who is the doctor in the hospital responsible for the patient, and how can he or she be contacted?
(14) Is it possible for Mrs. Northridge to obtain the services of a solicitor for Monday 13 March 2000?
At about 3.25 pm the Duty Security officer telephoned again and conveyed the following answers from Mrs. Northridge:
(1) John Thompson, brother of Mrs. Northridge.
(2) Royal Prince Alfred Hospital.
(3) Irreversible brain damage.
(4) Thirty-seven years.
(5) The patient was admitted on 2 March 2000 for drug overdose, thereafter contracted a lung infection and has been diagnosed as having irreversible brain damage.
(6) Continuation of care, that is continuation of feeding, giving of antibiotics, et cetera.
(7) The patient is semiconscious but this is due to sedation with morphine.
(8) The patient is unaware of the events and his surroundings.
(9) Not applicable.
(10) He would be lucky to be alive, was Mrs. Northridge's response.
(11) The hospital administration refused to talk about putting the patient on treatment after "stopping further treatment because it would be futile".
(12) The patient does not have his own doctor.
(13) Professor Duggin is said to be responsible for treatment and decisions and Mrs. Northridge had been communicating with Professor Duggin through the Hospital Registrar Dr Meg Jardin (sic).
(14)Yes, at the commencement of the business day, but is unable to contact anyone today, Sunday.
A transcript of the questions and answers put to Mrs. Northridge by the Supreme Court Duty Security Officer and her responses as detailed in writing by him are annexed to an interim judgment given on 13 March, 2000.
I then contacted Royal Prince Alfred Hospital and, through the hospital, the relevant Hospital Registrar, Dr Jardine, who was at her home. I spoke with Dr Jardine, advised her of the application that had been made and asked a number of questions about the patient John Thompson. She advised that the decision to discontinue treatment had been made after neurological assessment. This revealed that some basic brain activity remained which enabled breathing, heart beat and the operation of other organs to continue, but that the assessment was that the patient's brain was otherwise inactive. She said that if treatment was not maintained, and if the patient was not fed, he would die.
I asked Dr Jardine about her availability and the availability of Professor Duggin for a hearing on Sunday 12 March 2000 and informed her that unless some accommodation could be reached it would be necessary to have a hearing, which would be convened for later that evening. However, I asked her to consider the maintenance of the status quo by giving antibiotics to the patient and feeding the patient intravenously. She said that she would have to contact Professor Duggin before she could agree to commence the procedures discussed.
The Supreme Court Duty Security Officer was then advised of what had transpired and was asked to communicate the situation to Mrs. Northridge.
Shortly after 4 pm Dr Jardine rang my home. She advised that she had spoken with Professor Duggin who had agreed to the resumption of treatment of the patient John Thompson by the administration of antibiotics and of life support by intravenous feeding and fluids. She informed me that there was no need for an artificial respiration because the residual brain activity was such as to enable the patient to breathe without it.
Dr Jardine was informed that the matter would be listed at 10 am in Number 1 Court King Street on Monday 13 March 2000 and was asked to ensure that she and Professor Duggin would be available on call to attend during the course of the day should the matter need to proceed as a hearing. She was advised that Royal Prince Alfred Hospital would be informed of the outcome to date and that the Central Sydney Area Health Service would also be advised of the situation.

In the course of the discussions with Dr Jardine it emerged that a conference involving the hospital staff and Mr Thompson’s family was scheduled for 5 pm on Sunday 12 March 2000. When asked whether this should proceed, I informed Dr Jardine that in my opinion it should.

I then telephoned Royal Prince Alfred Hospital (RPAH) and having obtained the name and contact number of the appropriate officer of the Central Sydney Area Health Service spoke to him by telephone and advised of the proposed hearing on Monday 13 March 2000. He was asked to contact RPAH’s solicitor or the Crown Solicitor, if the Crown Solicitor was acting for the Central Sydney Area Health Service.
Arrangements were then made for Mrs. Northridge and her solicitor to be at Court at 10 am on Monday 13 March 2000.
The chronology of events recorded by the Duty Security Officer, a copy of the fourteen questions submitted by him to Mrs. Northridge, her responses, my handwritten notes of the events involved in the various phone calls and the outcomes of such calls have been initialled by me and placed with the court papers.
Mrs Northridge was appointed as tutor for her brother, John Robert Thompson (Mr Thompson) on 18 April 2000 and the matter proceeded on the basis that Central Sydney Area Health Service, under whose control the Royal Prince Alfred Hospital and its staff fell, should be treated as if it were the sole defendant.

JURISDICTION

One of the prerogatives of the Crown is the right to take care of the person and property of those who by virtue of disability are unable to do so for themselves. Such disability may include minority, mental disorder and unconsciousness (Halsbury’s Laws of England, 4th Ed. para 901). The jurisdiction to protect the person of those who are not able to do so for themselves is part of the parens patriae jurisdiction of the Crown, one of its ancient prerogative jurisdictions.
The history of the parens patriae jurisdiction of the Crown is long. It has been vested in the Crown since at least 1325 and, according to some authorities, its origins go back as far as the 13th Century (In Re F (1990) 2 AC at 26, 57). By virtue of such jurisdiction the Crown has not only the power, but also the duty, to protect the person and property of those who are unable to do so for themselves. That jurisdiction was delegated to the Lord Chancellor and was vested in the Courts of Westminster at the time of establishment of the Supreme Court of New South Wales.

The jurisdiction of the Supreme Court was established by virtue of 4 George IV c.96 and the Third Charter of Justice for New South Wales, which was sealed on 13 October, 1823. The Supreme Court was established as a superior court of record in New South Wales with the jurisdiction of the King’s Bench, Common Pleas, Exchequer, Chancery and Probate courts at Westminster in England. It had an inherent jurisdiction that was sufficiently wide to meet the requirements of the administration of justice. The Supreme Court, as initially established, is continued by the Supreme Court Act, 1970 (S.22) and has conferred on it all jurisdiction which may be necessary for the administration of justice in New South Wales (S.23). Such jurisdiction is at least as wide as that which was initially conferred on it and includes a parens patriae jurisdiction (Secretary Department of Health and Community Services v. J.W.G. and S.M.B. ((1991-2) 175 CLR 218 - Marion’s Case; See also Halsbury’s Laws of England 4th Ed. para. 901) notwithstanding legislative intervention in a number of areas, including that relating to disabled persons. The Guardianship Act 1987 is one such legislative intervention. However, notwithstanding that the Guardianship Act 1987 confers jurisdiction on a statutory body to protect the person and property of certain categories of persons unable to do so for themselves, it does so without prejudice to the jurisdiction of the Supreme Court in that regard.

The parens patriae jurisdiction of the Court is essentially protective in nature (Marion’s Case supra at 280). By resort to such jurisdiction the court is empowered to protect the human dignity and rights of individuals who are disabled in such a way that they cannot protect such dignity and rights for themselves. This is a value which Brennan J said in Marion’s Case (supra):
“underlies and informs the law: each person has a unique dignity which the law respects and which it will protect. Human dignity is a value common to our municipal law and to international instruments related to human rights. The law will protect equally the dignity of the hail and hearty and the dignity of the weak and lame; of the frail baby and of the frail aged; of the intellectually able and the intellectually disabled … our law admits of no discrimination against the weak and disadvantaged in their human dignity” (supra at 266)
The role of the law in relation to persons who are unconscious and in need of medical attention or like protection is the same as its role in relation to those who are mentally incapable. (Re F (Mental Patient: Sterilisation) (1990) 2 AC 11)
The parens patriae jurisdiction of the Supreme Court extends to the protection of the life and bodily integrity of persons who are unable to do so for themselves because of various exigencies, one of which is unconsciousness.
In exercising its parens patriae jurisdiction in the area of present concern the paramount consideration is to preserve the life of or safeguard, secure or promote, or prevent the deterioration in the physical or mental health of the person the subject of the exercise of the jurisdiction (MAW v Western Sydney Area Health Service (1999) 49 NSWLR 231). Any operative or medical procedure that is carried out must be undertaken “to save their lives, or to ensure improvement or prevent deterioration in their physical or mental health” (Re F supra at 55). This conclusion has also been supported by reference to the principle of necessity, with the consequence that treatment or other procedures undertaken must be in the best interests of preserving the life, health or wellfare of the person concerned. (Re F supra at 76, 79).
In Australia, the High Court in Marion’s Case recognised that the overriding criterion for the exercise of the jurisdiction is the protection of the best interest of the health and welfare of the person the subject of its exercise. (supra at 240, 249, 252, 270-273, 295, 300, 316)
The exercise of the parens patriae jurisdiction should not be for the benefit of others (Re Eve (1987) 31 DLR (4th) 1 at 34), including a health care system that is intent on saving on costs. However, in exercising such jurisdiction the admonitions of superior courts that, although the jurisdiction is broad, it should be exercised cautiously (Re O’Hara (1970) AC 668 at 695; Marion’s Case supra at 280), should be borne in mind.

The law in Australia is well settled that it is lawful for, and the duty of, a hospital which or doctor who has undertaken the care of a patient who is unconscious, to carry out such treatment as is necessary and appropriate to safeguard the life, health and welfare of that patient, even though such patient is in no position to give or refuse consent to the course taken.

There is undoubted jurisdiction in the Supreme Court of New South Wales to act to protect the right of an unconscious person to receive ordinary reasonable and appropriate (as opposed to extra-ordinary, excessively burdensome, intrusive or futile) medical treatment, sustenance and support. In this day and age ordinary reasonable and appropriate treatment, for a person of the age and condition of Mr Thompson, would extend to the administration of antibiotics and appropriate feeding. The court also has jurisdiction to prevent the withdrawal of such treatment, support and sustenance where the withdrawal may put in jeopardy the life, good health or welfare of such unconscious individual. What constitutes appropriate medical treatment in a given case is a medical matter in the first instance. However, where there is doubt or serious dispute in this regard the court has the power to act to protect the life and welfare of the unconscious person.

THE EVIDENCE

A. PLAINTIFF

As at the initial dates of hearing of this matter Mr Thompson was a patient in Royal Prince Alfred Hospital. He was admitted to the hospital in an unconscious state on 2 March 2000 and was given treatment. He is 37 years of age and unmarried. He is said to have suffered a cardiac arrest as a result of an overdose of heroin. The facts concerning Mr Thompson and his treatment have not been tested by cross-examination and so it is not possible to be definitive about them. However, some matters emerge quite clearly and are not the subject of contradiction.

Mrs Northridge’s affidavit reveals that within a matter of four days of his admission Mr Thompson had been written off as a person for whom there was “no hope” and who “was not going to make it”. The manner and circumstances in which this information was conveyed to the family led the plaintiff to intervene and say “if you are here to ask for John’s body parts the answer is no, so please don’t ask”. According to her nothing was said on that occasion about Mr Thompson’s future care.

Mrs Northridge further deposes that on or about 7 March 2000 Dr Geoffrey Gordon Duggin, into whose care Mr Thompson came, said to Mr Thompson’s mother that “I will be taking him (Mr Thompson) off antibiotics.” When Mrs Thompson said that he would get pneumonia if that was done, Mrs Northridge’s affidavit states that the doctor replied, “Yes, that’s right”. Mr Thompson’s mother then asked Dr Duggin not to take her son off antibiotics because he would die if that happened. Dr Duggin is said then to have pointed his finger at Mr Thompson and to have remarked: “what’s the point”, and then to have left. Dr Duggin does not dispute this in his affidavit.

Within the next day or so a male doctor from the Intensive Care Unit requested a family gathering to say goodbye to Mr Thompson who, they were advised, “would be dead within a couple of days.” On 8 March 2000 Mr Thompson was moved to what is described in Mrs Northridge’s affidavit as the Transplant Ward on Floor 7 of the hospital. It emerges from the material before the Court that at that time both antibiotics and feeding of Mr Thompson had ceased. Her evidence is emphatic that the family did not agree to the withdrawal of antibiotics or feeding.
Within a matter of days Mr Thompson developed what is described by Mrs Northridge as “a raging fever”. She says that his lungs were filling up and that the sound of his breathing could be heard past the nurses station out into the corridor. She claims that any request for assistance from the nursing staff was met with a display of annoyance.

Because of the deterioration in Mr Thompson’s condition after his removal from the Intensive Care Unit to Floor 7, Mrs Northridge rang the hospital in an endeavour to ascertain its policy in relation to the withdrawal of treatment and whether such policy involved consultation with the family. To this end she spoke to a lady who identified herself as “Lorraine”, but refused to give her last name. However, according to Mrs Northridge’s affidavit, she assured her that she was the Head of the Hospital at the time. She said that it was hospital policy to discuss the management of patients fully with the family before any decisions were made. When Mrs Northridge explained the situation in relation to the withdrawal of antibiotics from Mr Thompson, and that as a consequence he was now in a critical condition, the lady said she could not overrule Mr Thompson’s doctor, namely Dr Duggin.

Mrs Northridge then went to the hospital to see what could be done for her brother. The nursing staff told her they could not be of assistance, but at Mrs Northridge’s insistence they contacted the Registrar, Dr Meg Jardine. Mrs Northridge explained her brother’s situation to Dr Jardine and asked her to assist. Dr Jardine said she would ring Dr Duggin and get back to Mrs Northridge. When she did so she informed Mrs Northridge that the antibiotics would not be reinstated. Mrs Northridge then pleaded with Dr Jardine to come to the hospital and to reinstate Mr Thompson’s antibiotics. Dr Jardine declined to do so.

Mrs Northridge talked with another Registrar who, having telephoned Dr Duggin, advised that he was unable to overrule Dr Duggin and that as a consequence antibiotics would not be reinstated. It was at that time that the family discovered that Mr Thompson had not been fed for some three days and that this was in accordance with an entry on Mr Thompson’s hospital notes which indicated that feeding should cease “at the end of the 8th”, that is less than one week after Mr Thompson’s admission to RPAH.

Mrs Northridge then contacted Public Health Emergencies without success. However, a suggestion was made by a public official at that body that she contact the Guardianship Tribunal. She did so, but was advised on Sunday, 12 March 2000, that the representative of the Guardianship Tribunal had been unable to get a response from RPAH. As a consequence he suggested that an application be made to the Duty Judge of the Supreme Court. That was done, as is recorded in the first section of this judgment.

On the morning of Sunday, 12 March 2000 Dr Jardine left a message that Dr Duggin had requested the family to attend a meeting with him at 5.00 p.m. that day. Mrs Northridge asked Dr Jardine if Dr Duggin was going to reinstate the antibiotics. Dr Jardine replied in the negative, saying that Dr Duggin claimed that “it would be a futile exercise.”

Following the Court’s intervention, Mrs Northridge attended a meeting with Dr Duggin, a doctor who was then in charge of the Intensive Care Unit (name not stated), Dr Jardine and the Director of Nursing. By that time the name of the doctor responsible for Mr Thompson had been placed above his bed, and a wrist band with his name on it had been fitted. Mrs Northridge says that she noted that the sign “Transplant Ward” had been taken down from above the entrance to the ward to which Mr Thompson had been moved.

At the meeting on the evening of 12 March 2000 Dr Duggin was asked about the withdrawal of Mr Thompson’s medication and feeding. Mrs Northridge states that she asked with which member of the family this had been discussed. She then deposes that Dr Duggin’s reply was that it was his medical opinion that antibiotics were of no benefit to Mr Thompson. When he was pressed as to which member of the family the withdrawal of antibiotics and feeding had been discussed with, Dr Duggin replied “the decision was made, based on the neurologist’s report”. When pressed further, Dr Duggin said that no member had been consulted. Significantly, this sequence is not denied by Dr Duggin. When then pressed in relation to the withdrawal of food, according to Mrs Northridge, Dr Duggin claimed to be unaware that this had been done, but added “he is being given glucose anyway”. On inquiry from the hospital’s staff however it was stated that Mr Thompson was being given sodium chloride not glucose. Mrs Northridge then asked whether Dr Duggin was going to restore Mr Thompson’s feeding. Dr Duggin is said to have replied, “If you like we can do that”.
There was then some discussion as to why 60 mls per day of morphine was being administered to Mr Thompson. Dr Duggin is said to have replied that it was “because of withdrawals” and to slow his heart rate down. When asked if Mr Thompson’s morphine could be reduced, Dr Duggin replied “No”. Mrs Northridge then asked Dr Duggin why Mr Thompson had been placed in a Transplant Ward when Dr Duggin was a kidney transplant specialist. Dr Duggin’s response to this was that he had no patients in that ward.

Towards the end of March 2000 Mrs Northridge and her husband met with Dr McWilliam and a social worker at RPAH. Dr McWilliam said, “John can’t see. He can’t hear. He can’t feel. If he was my kin I would let him go.” Both Mrs Northridge and her husband objected to such statements, explaining that Mr Thompson’s eyes followed them, that he would turn his head when called and he would flinch when treated by the nurses. According to Mrs Northridge Dr McWilliam appeared to be angered by this, and said that families find it hard to let go and were basically only seeing what they wanted to see. Dr McWilliam put movement down to spasm and during the course of the discussion used the expression “vegetative state” on several occasions.

In early April 2000 Mr Thompson’s family was advised that he would have to leave the Intensive Care Unit and that he would be placed on palliative care. When the doctor who gave this advise, Dr Green, was asked what type of treatment Mr Thompson would receive in palliative care, she advised that he would be given all care but no treatment. When asked specifically about antibiotics she said that as far as she knew they were not administered to patients in palliative care. At that stage the social worker who had attended the meeting pointed out that AIDS patients receive antibiotics until the end of their lives.

Mrs Northridge claims that enormous psychological pressure was placed on the family by the hospital.

On 12 April 2000 a meeting was held between members of the family and a Neurologist, Dr Herkes. After some introductory discussion Dr Herkes is said to have raised the possibility of another cardiac arrest, which upset Mr Thompson’s mother who was aged 80. According to Mrs Northridge, Dr Herkes asked her at least three times if she would agree that Mr Thompson should not be revived in the event of a cardiac arrest. Mrs Northridge said: “No”, and claims that notwithstanding this Dr Herkes went to the nurses station and wrote a number of things including that Mrs Northridge had agreed that in the event of respiratory arrest Mr Thompson should not be revived. Mrs Northridge claimed that this had never been discussed and certainly not agreed to. As a consequence when she was asked to sign the document she declined to do so requesting that a copy of it be sent to her solicitors. It was not.

The policies and procedures regarding the withholding and withdrawing of life support at RPAH are embodied in a document whose aim is to provide guidance on the management of cardiopulmonary resuscitation and the making of “Not for Resuscitation Orders.” In the document the policy of the hospital is stated to be:
“to involve patients, families and health care personnel in decisions concerning the patient’s care and treatment” (Policy 3).
Specific provision is made in respect of withholding and withdrawing treatment. Consultation is required. This is intended to ensure, inter alia, that “the family/significant others of incompetent patients are given the opportunity to participate fully in discussions regarding the withholding/withdrawing of treatment”(Clause 1.1). The consultation process should wherever possible “lead to a consensus between … the health care team and where appropriate, the relative or significant other, and an informed decision and agreed management plan”. (Clause 1.2) Not for Resuscitation Orders and orders to withhold, withdraw or limit treatment are required to state clearly the indications for the decision, the people involved in the decision making process and the intervention of treatments to be withheld or withdrawn. In “the unusual circumstances where the decision is not discussed with the relatives … the reason for this should be documented” (Clause 2.1; italics added). Such circumstances may include “where it is deemed inappropriate by the specialist”. (Clause 2.1) The policy acknowledges the need for support and counselling for some families (Clause 4.0) and also requires that any disagreement as to withholding or withdrawing treatment be resolved by further discussion and that until the disagreement is resolved treatment be continued. (Clause II 1.2). Provision is made for the overruling of family requests for the continuation of treatment if further medical treatment is “of no demonstrable benefit” (Clause II 1.3). However, this is subject to the caveat that where this occurs “it may be appropriate to continue treatment until conflict with relatives is resolved”. (id)

It is apparent from Mrs Northridge’s affidavit that the hospital’s guidelines were not adhered to. Furthermore, far from there being support for the family there was a perception of pressure being applied to them.

One further matter should be adverted to and that is the “Not for Resuscitation Order” which was made in respect of Mr. Thompson on 9 March, 2000.
Mrs Northridge arranged for her brother to be examined by an independent medical practitioner from outside RPAH. It was carried out by a distinguished neurologist, Emeritus Professor James W Lance AO CBE on 30 April 2000. He noted a history that Mr Thompson had been picked up by ambulance after a cardiac arrest on 2 March 2000. His Glasgow coma score (GCS) was then 3 out of 15. Eye movements could not be obtained by head rotation and gag reflex was absent. His reflexes were increased with clonus, his plantar responses equivocal. However, the next day he opened his eyes in response to a spoken request and moved spontaneously. Electroencephalogram (EEG) showed generalised slow activity. By 4 March 2000 his GCS had increased to 9 (an improvement) and by 5 March 2000 he responded to his name and focussed on the speaker. Because strep. pneumoniae was isolated in his sputum, an anti-biotic was administered. On 9 March 2000 the antibiotic was suspended and recommenced only after intervention by the court. That intervention also led to his return to the Intensive Care Unit from which he had been removed on 9 March 2000.
On examination, Professor Lance observed Mr Thompson to be alert, look at the examiner upon his entry into the room, move his upper limbs on request and be able to make sounds. However, because he had undergone a tracheostomy he was unable to speak. His CGS had increased to 12 out of 15, a further improvement.

Mr Thompson obeyed requests made to him, his eye movements were full, his pupils symmetrical and reactive to light and his facial sensation presented as intact, although facial movement was limited. There was voluntary movement of the palate but it was poor and his gag reflex was absent. Mr Thompson was able to protrude his tongue to an extent, to flex and extend his fingers on the right side and to write answers to questions posed to him, albeit his writing was not good. Upon Professor Lance leaving Mr Thompson, the Professor waved and said goodbye whereupon Mr Thompson responded by extending his right wrist in a farewell gesture.

Professor Lance noted that Mr Thompson’s condition had improved by the time of his examination on 30 April 2000, compared with the condition on examination by another doctor on 13 April 2000.

Professor Lance advised that he would expect continued improvement in cognitive function, that some further upper limb function could be regained and that Mr Thompson should improve to a point where he could swallow and speak. However he would continue to be impaired and prognosis for the return of useful power to his lower limbs was “uncertain”.

Professor Lance recommended that Mr Thompson be transferred to a Brain Injury Rehabilitation Unit and that active physiotherapy for his chest and limbs be undertaken. He specifically commented that it was not appropriate, as at the date he saw Mr Thompson, for there to be a Not for Resuscitation Order in force in respect of him.

Mr Thompson was also seen Dr Edward Freeman, a medical consultant for the National Brain Injury Foundation. On 28 April 2000 Dr Freeman conducted an extensive examination of Mr Thompson, having first gained information about him from the family. He did this because 20 years of involvement in cases such as that of Mr Thompson caused him to believe that “members of the family are very acute and accurate observers of early changes in the patient” and since they spend hours every day with the patient “they are a great source of valuable information which is otherwise lost”. It was Dr Freeman’s view that it is a fallacy to assume that family members are not capable of noting the early minute changes which often occur in patients like Mr Thompson.

Dr Freeman observed Mr Thompson shake hands, look towards particular objects, engage in arm wrestling with his left hand and arm, open and move his eyes, watch television, respond to auditory stimuli and understand instructions. Testing of sensory perception revealed that he responded to cold (ice) by flinching. Head control was present. There were no spasms or seizures and Mr Thompson was capable of movement in both arms, consisting of both flexion and extension. On instruction he was able to move each of his hands to his face and to open fully and close fully the fingers of both hands. Dr Freeman commented that “his hand function appears normal in the ability to move”. There was spontaneous movement of both legs, but without indication of power. However he was capable of lifting both legs from the floor when seated. Communication by body language, facial expression, movement of the head and writing was observed.

It was Dr Freeman’s opinion that a premature diagnosis of “chronic vegetative state” had been made in respect of Mr Thompson. He commented that the description “chronic” is of itself unusual, the usual descriptions of the vegetative state being either “persistent” or “permanent”. However, whatever the epithet that had been used to describe the state of Mr Thompson, Dr Feeman was of the opinion that a diagnosis of such a kind should not usually be made until 6 - 12 months after a cerebral injury.

Dr Freeman’s assessment of Mr Thompson was that he had a significant level of awareness which appeared to be increasing, that he was still in an early recovery phase, that he was demonstrating increased cognitive function, appropriate emotional reactions, had sensory abilities of vision, hearing and some tactile function, was able to control movements of his head and had movement in all limbs. He expressed the medical opinions that “he (Mr Thompson) cannot be called vegetative” and further that he “may well have the potential for much greater recovery of function”. Dr Freeman recommended that active rehabilitation be undertaken for a period of six months to determine the likely extent of further progress and that this would be best achieved by his admission to a brain injury unit for intensive rehabilitation.

At the conclusion of his report, Dr Freeman stated that what had occurred in relation to Mr Thompson was “not a rare case”. The essence of “(his) story i.e. the discarding of people with severe brain injury by the health care system in Australia, unfortunately, is very familiar … and very frustrating.”

Mr Thompson’s condition was also reviewed by Dr Peter McCullagh, a former Rhodes scholar and currently Senior Fellow Developmental Physiology, John Curtin School of Medical Research, Australian National University. The essence of his affidavit is critical of the diagnosis effected in respect of Mr Thompson at RPAH. Furthermore he, like Dr Freeman, is critical of the description “chronic vegetative state” applied at RPAH to Mr Thompson. Such a description, he says, is “not a description that accords with any of the major codes of classification”.
In dealing with the diagnosis of “chronic vegetative state” Dr McCullagh adverts to the terms used in the United Kingdom in guidelines formulated by the Royal College of Physicians, endorsed by the Medical Royal Colleges and adopted by the High Court of Justice. These terms are:

the vegetative state;
the continuing vegetative state (CVS); and
the permanent vegetative state (PVS).

The diagnosis of CVS should only be made after a period in excess of four weeks of being continually in a vegetative state. A diagnosis of PVS should only be made “after a patient has been in a CVS for more than 12 months following head injury or more than six months following other causes of brain damage.”
He expressed concern that if the diagnosis of “chronic vegetative state” was intended to be synonymous with PVS, the diagnosis made at RPAH had been made five months earlier than it should have been. If, on the other hand, “chronic vegetative state” was intended to connote something less than PVS, then the decision not to treat Mr Thompson’s chest infection before a diagnosis of PVS had been made would clearly conflict with the United Kingdom standard and guidelines.
Furthermore, he stressed the risk of making a false positive diagnosis of vegetative state within a period as short as that which had elapsed when such a diagnosis was made in respect of Mr Thompson. That is not, he said, in accordance with current medical thinking, which indicates the risk of making a false positive diagnosis in such circumstances as being in the order of fifty percent (50%).
What emerges clearly from the evidence in the plaintiff’s case is that there was no clear agreement reached between the hospital on the one hand and the relatives of Mr Thompson on the other as to the course of his treatment or what should be done if a life threatening incident should occur. Consultation was minimal and there was a real apprehension that the medical staff had written Mr Thompson off almost from the beginning of his time in RPAH. Furthermore, it was firmly fixed in the minds of some of the family that the hospital was anxious to have resort to some of his organs for the purposes of transplantation in the event that he should die. This belief was fostered by the fact that he was put into a renal transplant unit when he was removed from intensive care, that treatment by way of antibiotics had been discontinued and feeding terminated without consultation with the family and without indication as to the purpose or duration of that situation and finally by the making of a Not for Resuscitation Order in respect of him.

B. THE DEFENDANT

Affidavits by Dr Leo Davies, Neurologist, Dr Geoffrey Gordon Duggin, the Head of the Renal Diagnostic Laboratory and of the Toxicology Unit at RPAH, Dr David McWilliam, the Senior Staff Specialist of the Intensive Care Unit at RPAH, Dr John Watson, Director of the Neurophsychology Unit at RPAH, and Dr Meg Jardine, a Renal Registrar, were read. An affidavit was prepared by Dr Robert Herkes, however Dr Herke’s affidavit was not read although it is referred to in the affidavit of Dr McWilliam, who says that he had referred the affidavit of Dr Herkes sworn on 17 April 2000 and agreed with its contents. What it is to which Dr McWilliam was agreeing is not in evidence.
The evidence of Dr Duggin makes it clear that he although he is the head of the toxicology unit at RPAH there was no need for advice or instructions from him “on toxicology matters because antidotes had been instituted at the time of his resuscitation.” Likewise, there was no need for Dr Duggin to advise in relation to renal matters since whatever other conditions or disabilities afflicted Mr Thompson these did not include any problems with his kidneys.
Dr Duggin first saw Mr Thompson on the afternoon of 3 March 2000, discussed his condition with Dr McWilliam, the intensive care consultant responsible for Mr Thompson at that time. However, Dr Duggin was unable to recall the content of those discussions. Dr Duggin appears next to have seen Mr Thompson on 9 March 2000 following his transfer to the renal ward. At that time Mr Thompson was not being fed nor were any antibiotics being administered - a situation which continued until the intervention by the court. Thereafter Dr Duggin saw Mr Thompson on 10 March, 12 March, 13 March, 17 March and 20 March, on which date he was transferred back to the Intensive Care Unit and out of the care of Dr Duggin. During the period between the date of Mr Thompson’s admission on 2 March 2000 and 20 March 2000, Dr Duggin spoke to the plaintiff and Mr Thompson’s mother on only two occasions. These were during the doctor’s rounds and according to the doctor he gave “a pessimistic prognosis … that he was unlikely to recover”. No details are given by Dr Duggin as to the way in which this information was conveyed and his affidavit does not traverse the evidence of Mrs Northridge in this regard.
Although Dr Duggin states that he was aware that Dr McWilliam had discussed the medical management plan with Mr Thompson’s relatives no details are provided.
One matter that should be noted however is that at the time of Mr Thompson’s transfer from the Intensive Care Unit to the Renal Unit, Dr Duggin was aware that a Not For Resuscitation order (NFR) had been placed on Mr Thompson. Dr Duggin took no part in the placement of that order or in anything that preceded it. However, he states:
“To the best of my knowledge the NFR order had been placed on Mr Thompson’s medical notes following consultation with his family.”
The basis of Dr Duggin’s knowledge is not indicated in his affidavit.

It is also clear that as at 9 March 2000 antibiotic treatment had been terminated. It is stated that there was no evidence of pneumonia at that stage, although Mr Thompson did have a lot of bronchial secretions. (See however the evidence of Dr. Jardine below.) At the time of his transfer Mr Thompson had a continuing high temperature, but notwithstanding this “it was decided not to investigate the cause”. The reason for this is said to be “because of the clear chest x-ray.”
At the time that Dr Duggin received Mr Thompson into the renal ward feeding had ceased. According to Dr Duggin it was his plan “to wait three or four days to assess whether Mr Thompson developed gag reflexes or pharyngeal reflexes to enable him to protect his own airway.” However, there is nothing in Dr Duggin’s affidavit or in any of the other affidavits filed on behalf of the defendant to indicate that any such plan was recorded in writing or communicated to any member of Mr Thompson’s family. Furthermore Dr Duggin acknowledges that feeding was resumed “at the insistence of the family and following the intervention of the Supreme Court”.
The use of Diazepam and the administration of morphine is explained by Dr Duggin in his affidavit on the basis that the former was to control his fits and muscle spasms and the latter “to prevent a withdrawal reaction to the cessation of heroin and to prevent any pain as a result of the intense muscle spasm”.
One effect of the NFR was to negate treatment inconsistent with its implementation. After its imposition the only treatment that Mr Thompson received was “to ensure that he was comfortable and without pain”.
The attempts by Mr Thompson’s family to have treatment and feeding of Mr Thompson re-instated are dealt with by Dr Duggin. He states that he “could see no medical indication to restart the administration of antibiotics and nasogastric feeds.” This stance was maintained when Dr Jardine, the Renal Registrar, asked for instructions about further management of Mr Thompson.
The intervention by the court caused Dr Jardine to recommend the reinstatement of antibiotic treatment and feeding. She said to Dr Duggin:
“We should recommence antibiotics and we should recommence nasogastric feeding and if we don’t do that he (the judge) says he will hold a hearing this evening.”
This information galvanised Dr Duggin into action. Antibiotic treatment was recommenced, as was feeding. The re-instatement of the antibiotic did not pose any real problem since, as Dr Duggin deposes, “there was only a very small risk of complication from their administration.” He was less confident about feeding the patient, however in the events that transpired this did not prove to be a problem either.
Dr Duggin’s principal recollection of the family conference was that the plaintiff was very hostile. It is appropriate at this stage to interpolate that such hostility is not difficult to understand. The plaintiff’s brother had had treatment withdrawn and feeding discontinued. A NFR order had been imposed on him. He had been transferred from the Intensive Care Unit to a Renal Unit, when he had nothing wrong with his kidneys, and the actions of the medical staff of the hospital gave the impression that they were subjecting the family to pressure because the medical staff had written Mr Thompson off.
It is clear from the family conference held on the evening of 12 March, 2000 that the plaintiff was concerned that her brother had been placed in the ward of a kidney specialist. She voiced her concern that Dr Duggin was going to take his kidneys. Dr Duggin said that this was not so, adding “I don’t do kidney transplants.”
On 20 March 2000, the day Mr Thompson passed out of the care of Dr Duggin, he experienced a respiratory arrest. Had the NFR then been in force no steps would have been taken to ventilate him and thus restore his breathing. Because of the intervention by the court the NFR had been lifted. This resulted in his being ventilated, his breathing being restored and his recovery.
When last seen by Dr Duggin on 20 March 2000 Mr Thompson “had made an excellent recovery from the respiratory arrest.” That does not suggest futility of treatment.
The evidence of Dr Leo Davies reveals that he undertook three neurological assessments of Mr Thompson. These were on 3, 7 and 24 March 2000. The first of these revealed that “it was obvious from the EEG test … that this patient was not brain dead.” Whilst showing some changes the EEG had to be viewed against the fact that a drug was being administered to him which could effect the EEG results.
As at 3 March 2000 Mr Thompson was not conscious, was agitated and showed signs of severe irritation of his brain. Dr Davies talked with the nurses, read the progress notes and conducted an initial examination from which he concluded that Mr Thompson had signs of brain stem function and intact cortical function and that he was able to respond purposefully to painful stimuli. However, Dr Davies thought “it was too early to make a definitive assessment.” In his clinical notes he recorded:
“I think he will wake up although one can not exclude some degree of cortical damage”
Dr Davies visited the intensive care unit on 4 March 2000 and asked how the patient was doing, however he did not see the patient again until 7 March 2000 on which date he attempted to assess Mr Thompson’s current neurological status. His conclusion was:
“This patient (is) clearly not brain dead.”
This was apparent from his examination of the plaintiff. However, there were indications of brain swelling secondary to severe brain damage.
Dr Davies did not examine Mr Thompson again until 24 March 2000, more than three weeks after his initial admission to hospital. On that occasion Dr Davies saw the patient when he was on his way to give a lecture at Sydney University. He formed the view that Mr Thompson “was now in a chronic vegetative state with no chance of regaining independence, that is of becoming self caring”.
No explanation is given as to the criteria applied by him or at RPAH in relation to the making a diagnosis of “vegetative state”, nor as to the time frame which should elapse before a diagnosis of “vegetative state” is made. The clinical assessment by Dr Davies was that the majority of the plaintiff’s brain was not dead and that he should be assessed for at least three weeks until he stabilised with a view to transfer out to a nursing home. Thus whilst Dr Davies did not think that Mr Thompson would be able to take care of himself, he was of the view that nursing home care, as opposed to intensive or other hospital care, was appropriate.
Dr Davies did not speak with Mr Thompson’s family on 3 March 2000. On the occasion of his second examination he asked a member of the family who was present to leave, but did not speak with such or any member of the family following the assessment nor did he speak with any members of the family following his final assessment. The statement in his affidavit, “I did not have much contact with the family” is clearly an understatement.
Dr David McWilliam is an intensive care consultant employed as a Senior Staff Specialist by the defendant and has been the Director of the Intensive Care Unit of RPAH since 1977. He first became involved with Dr Thompson’s care on 6 March 2000, the fourth day following his admission to the hospital. Dr McWilliam had not spoken to any of Mr Thompson’s family regarding his prognosis at that time. It was his understanding, however:
“That the intensive care team including the Senior Registrar Dr Jones had had repeated contact and discussions with multiple members of Mr Thompson’s family about his medical prognosis.”
The basis of this understanding is not explained in the evidence nor is there any evidence from Dr Jones.
On 7 March 2000 Dr McWilliam had his first discussion with a member of Mr Thompson’s family, namely his mother Mrs Jean Thompson. He told Mrs Thompson that he considered her son’s prognosis was poor and went on to say:
“Unfortunately he has suffered severe brain damage and he is not going to make a recovery.”
When asked what would then happen he said:
“We are going to change the emphasis of our care from trying to get him better which we now know is impossible to just doing those things which will contributed to his comfort.”
When asked the effect of this he said:
“We will probably pull the tube out because he is breathing adequately, but this will result in some instability and he may well die quickly or he may survive for several days … he will likely develop some complications and I expect that he will die from that complication. This means that we will stop all therapeutic measures and will not intervene if a complication develops.”
The response by Mrs Thompson, namely: “We understand”, can hardly be taken as assent to the adoption of such a course nor is it put forward by Dr McWilliam as such.
Dr McWilliam confirmed that nasogastric feeding was terminated on 9 March 2000. This is said to be because it was advisable in order “to minimise the risk of aspiration in his lungs if he vomited from a full stomach”. However, no indication is given as to why intravenous feeding, which would be likely to avoid both a full stomach and vomiting, was not substituted.
On 7 March 2000 Dr McWilliam asked members of the family to advise any other members of the family who might like to say goodbye to be present “in the event that the patient died shortly after extubation.” It was shortly after this time that the NFR order was imposed on Mr Thompson. Although Dr McWilliam says that he was “left in no doubt that Mr Thompson’s family including his mother were aware that a NFR order would be brought into effect because of my earlier discussion” (bold added) there is nothing in Dr McWilliam affidavit to indicate that had had ever discussed an NFR or its consequences with any member of the family.
Dr McWilliam’s affidavit also makes it clear that once Mr Thompson went into the renal ward not only would he not be fed or administered antibiotics but also that there would be “no blood tests or other investigations performed because there would be no point in arranging tests if we were not going to act on any result.”
At the family conference held on the evening of 12 March 2000 at which Dr McWilliam was present, a number of complaints and accusations were made about and directed at Dr Duggin and the Registrar, Dr Jardine. These were that the doctors:

“wouldn’t talk to us”;
“wouldn’t discuss this with the family”;
“stopped the antibiotics”;
“wouldn’t feed him”

Dr Duggin is said by Dr McWilliam to have tried to explain the management plan and that it “had been implemented following discussions with Mr Thompson’s mother”. No such discussion is deposed to by Dr Duggin. No such discussion is deposed to by Dr McWilliam. No such discussion is asserted to have occurred with Dr Davies. Dr Jones put on no evidence. Dr Herkes’ affidavit was not tendered or read. However, since this may have been a consequence of the course which the proceedings took I do not think it appropriate to draw any adverse inference from the absence of such evidence.
Mr Thompson was also examined by Dr John Watson, a specialist neurologist who is a Senior Lecturer in Medicine in the University of Sydney and Director of the Neuropsychology Unit at RPAH. His examinations were conducted on 15 March, 3 April and 13 April 2000. The first of his examinations led to the conclusion that “it was clear that Mr Thompson was not brain dead. All brain stem functions which I tested were present.” However, he reported significant brain damage and a poor prognosis.
This examination was conducted some 2 ½ hours after a dose of morphine had been administered to Mr Thompson but Dr Watson considered that his “assessment was not overly affected by hospital administered drugs.” (italics added)
Dr Watson’s second examination approximately one month after Mr Thompson’s admission to hospital resulted in his forming the opinion that “the patient was in a chronic vegetative state and his prognosis for significant improvement was vanishingly small.” He further expressed the view that “the patient had little prospect of significant recovery.”
At his third examination Dr Watson found that he was unable to open Mr Thompson’s eyes. There is nothing in Dr Watson’s affidavit to indicate how long it was before his examination that morphine had been administered to Mr Thompson. At this examination Dr Watson “could really see on balance no improvement since (his) last assessment” and he did not change the opinion that he had formed and expressed following his second examination.
The difference between the condition of the patient on 13 April 2000 when Dr Watson conducted his last examination and the condition of the patient on 28 April 2000 when Dr Freeman examined him and on 30 April 2000 when Emeritus Professor Lance examined him is remarkable. It highlights the need for the passage of time before a diagnosis of vegetative state is made. Within 15 and 17 days respectively Mr Thompson had progressed from being comatose, unresponsive and unable to have his eyes opened manually, to a person who was sentient, responding well to various stimuli and animated.
Dr Jardine, a Renal Registrar, at RPAH deposes to conversations with the plaintiff in response to the plaintiff’s concerns that antibiotic treatment and feeding of her brother had been discontinued. When Mrs Northridge said that she wanted her brother to have antibiotics and to be fed she also asserted that the discontinuance of such treatment and support was illegal, to which Dr Jardine replied:
“It is not illegal to give treatment that is futile.”
Dr McCullagh adverted to the question of medical futility in his affidavit when dealing with the reference by Dr Jardine set out in the preceding paragraph. Dr McCullagh said:
“I have no disagreement with that proposition in general provided that the questions of which treatment is futile and why it is so have been adequately and explicitly addressed. There are usually considered to be two components of medical futility. Firstly, a procedure may be considered futile because it is most unlikely to achieve its goal, that is, to be successful. Secondly, it may be that the specific goal of the therapy is judged to be futile. However, not infrequently, the context in which the term futility is introduced admits of no interpretation other than that the patient’s life itself is regarded as futile.
In Mr Thompson’s case it would be difficult to maintain that suitable antibiotic treatment … would be futile in treating his chest infection. Secondly, it would be difficult to maintain that treatment of a chest infection in a comatose patient 9 days after admission whose prognosis remains quite unclear, was a futile goal.”
Dr Jardine confirms that at the time the court intervened in relation to the withdrawal of treatment and feeding for Mr Thompson, “he was febrile and … might have a respiratory infection.” At the time of giving this answer Dr Jardine says it was difficult to say with any certainty whether or not Mr Thompson had any infection. This was because the hospital was not investigating the cause of his febrile state and as a consequence did not have available results from investigations such as sputum culture testing, urine culture testing or chest x-rays which would commonly be performed when investigating a fever.
In response to a question about his prognosis she responded:
“In these cases, what usually happens is that the patients get an infection such as pneumonia and eventually die.”
Dr Jardine confirms that following the intervention of the court and on Professor Duggin’s instructions antibiotic treatment and feeding were reinstated, the Not For Resuscitation order was revoked and a reduction in the morphine doses was begun, initially from ten milligrams every four hours to eight milligrams every four hours.
SUMMARY
The evidence reveals a lack of communication, a premature diagnosis, an inadequate adherence to the hospital’s own policies in relation to consultation with relatives and an absence of recognised criteria for the making of the diagnosis of “vegetative state”. Significantly it emerges as common ground that within a matter of days after his admission Mr Thompson was dealt with on the basis that any treatment would be futile. This was far too short a time after his injury for there not to be a serious risk of mis-diagnosis, as proved to be the case.
It is precisely because of such a risk that a standard and guidelines have been adopted in the United Kingdom in relation to vegetative state, continuing vegetative state and permanent vegetative state. (see below)
In addition transferring Mr Thompson into a renal transplant ward after treatment and feeding had been discontinued and a Not for Resuscitation order imposed, could not help but give rise to a perception that there was a conflict of interest in relation to his treatment and management. I hasten to add that I accept that there was no proposal by the hospital or the doctors to use his organs as transplants after his death. His drug dependency and the fact that he had hepatitis B and C negated this as a prospect. However, in life and death situations it is important that any conflict of interest or circumstance that may give rise to an apprehension of conflict of interest be avoided, in the same way as bias and the apprehension of bias must be avoided in relation to the judicial determination of the rights of individuals.
CONCLUSION
Mr Thompson is unarguably alive. He moves, responds, is able to write, articulate and to control a number of muscular and bodily functions. According to the material last put before the court he was then in a nursing home under the control of the defendant.
A number of areas of serious concern are thrown up by the present case. The first relates to the way in which and time at which the diagnosis of “chronic vegetative state” was arrived at. The very terminology used in the diagnosis is challenged by medical practitioners knowledgeable and skilled in relation to the care and treatment of patients who have suffered brain damage either as a result of head injury or some other cause. The terminology adopted in the United Kingdom is “permanent vegetative state”. Whilst there is no formal nomenclature in Australia it is, from a laymen’s point of view, not difficult to equate “chronic” with “permanent” when describing a vegetative state. However the two descriptions may not be synonymous. A second problem is that, assuming that the diagnoses of chronic vegetative state and permanent vegetative state are synonymous, there is no adopted or recognised standard in Australia in relation to the making of such a diagnosis. On different occasions during the course of the matter the defendant confirmed that there was no standard for the making of such a diagnosis and, a fortiori, no standard or guidelines in relation to the withdrawal of conventional medical treatment and artificial feeding from patients who are diagnosed as being in such a vegetative state.
This is in marked contrast with the situation in the United Kingdom where there are published guidelines, criteria or requirements which must be met before a diagnosis of permanent vegetative state is made and before there can be a termination of artificial feeding, treatment and support.
First, the diagnosis of “permanent vegetative state” is recognised as “not absolute but based on probabilities”. Second, such a diagnosis may not reasonably be made until the patient has been in a permanent vegetative state following head injury for more than 12 months or following other causes of brain damage for more than 6 months. Third, during these periods the guidelines require that, as soon as the patient’s condition has stabilised, rehabilitative measures such as coma arousal programs should be instituted. Fourth, the termination of treatment, artificial feeding and hydration of patients in a permanent vegetative state will in virtually all cases require the sanction of a High Court judge. In considering such an application the views of the next of kin or others close to the patient, whilst not acting as a veto to the application, must be taken fully into account by the court. Furthermore, there should be at least two independent reports on the patients from neurologists or other doctors experienced in assessing disturbances of consciousness. This is important as it ensures that there is no conflict of interest or perception of conflict of interest. These doctors must undertake their own assessments separately and in forming their opinions “must ask medical and other clinical staff and relatives and carers about the reactions and responses of the patient (since) it is important to take into account the descriptions and comments given by relatives and carers … who spend most time with the patient” (bold added)

The usual relief sought in England in respect of patients from whom artificial feeding, hydration and treatment are sought to be withdrawn, is by way of declaration that:
“the responsible medical practitioners … may lawfully discontinue all life sustaining treatment and medical support measures, (including ventilation, nutrition and hydration by artificial means) designed to keep (the patient) alive in (his or her) existing permanent vegetative state”.
The standard form of relief recognises that there may be a material change in the existing circumstances before such withdrawal by providing that any party has liberty to apply for such further or other declaration or order as may be appropriate (see Practice Note (1996) 4 All ER 766).
The existence of the standard and guidelines and the practice of the court clearly regard the diagnosis of permanent vegetative state as fraught with difficulties and as being one which should be arrived at only after a lengthy period, in which there is no change in the state of consciousness of the patient. Furthermore, the requirement that termination of treatment, artificial feeding and hydration be only with the prior sanction of a High Court judge, is a clear recognition of the right of unconscious patients to have their right to life protected by the full power of the law.
There is an obvious need for clear and precise criteria for the diagnosis of permanent (or chronic) vegetative state Australia, and for the circumstances in which conventional medical treatment, support and nutrition may be withdrawn from a patient in respect of whom a diagnosis of permanent (or chronic) vegetative state has been properly made. There is also a need for such criteria to be such as to ensure that conflicts of interest, or the perceptions of conflicts of interest, be avoided.
In the instant case it is clear that the observations of Mr Thompson made by his relatives were brushed aside. The responses of medical practitioners who did not have the same opportunity to view the patient as the relatives had were substituted. In addition it is clear that the level of communication between those treating Mr Thompson on the one hand and those of his family who were deeply concerned for the preservation of his life and the protection of his welfare on the other was less than adequate. Even in relation to such matters there are only interim guidelines that have been produced by the New South Wales health authorities. This should also be rectified. Furthermore, even the interim guidelines on management of unconscious patients are not easy to come by. It would seem that the same is true in respect of the guidelines established within RPAH regarding the withholding and withdrawing of life support. The policies and procedures document formulated by RPAH states that it is the policy of the hospital “to involve patients, families … in decisions concerning the patient’s care and treatment”. The dispute as to extent to which that policy was complied with in the present case points up the need for health care professionals, including doctors and nursing staff, to be made aware of and required to put into effect the relevant policy, and for the relatives of patients to be made aware of the existence and content of the policy document. In this regard it is significant to note that NFR orders are to be “considered in the overall context of withdrawing and withholding treatment” (Policy 8). That tends to give additional credence to the claim by the plaintiff that, in effect, a decision had been made to write Mr Thompson off and to allow death from infection to supervene. Withdrawal of sustenance would not be likely to assist in warding off infection.
Events subsequent to the initial hearings clearly establish that the decision to withdraw treatment and nutrition from Mr Thompson was premature; the prognosis that he would soon die, wrong. The change in his medical treatment and support regime consequent upon the intervention of the court helped to ensure that Mr Thompson not only stayed alive, but improved to the extent demonstrated on video recordings exhibited in the proceedings. Furthermore, the diagnosis and prognosis by Emeritus Professor Lance seems to have been accepted by the hospital and a number of the medical practitioners who had been treating Mr Thompson. These factors highlight the wisdom of allowing a sufficient time to pass between the trauma or other event giving rise to the unconscious state of the patient and the making of a diagnosis of permanent (or chronic) vegetative state, which may be, and in the present case was, a prelude to the withdrawal of treatment, support and nutrition.
The material before the court reveals that Mr Thompson has been transferred to a nursing home and that in such an environment he has continued to improve with the aid of appropriate rehabilitative treatment. Counsel for the defendant indicated that it was proposed to maintain appropriate medical and other treatment and support and that there was no longer any question of withdrawal of such treatment and support or of nutrition.
RELIEF
The plaintiff contends that the following orders should be made:
“1.         Order that until further order and during his further hospitalisation John Robert Thompson be provided with appropriate life preserving treatment.
2.            Order that no Not for Resuscitation Order be made in respect of Mr Thompson without the prior leave of the court.
3.            Order that the defendant pay the plaintiff’s costs of the proceedings on an indemnity basis.
4.            Order that the proceedings be stood over generally to be restored on 7 days notice.”
The defendant does not agree with the orders proposed by the plaintiff in two respects: first as to the form of order 1; second as to the nature of the order for costs. The defendant proposed that the first order made by the court should be in the following terms:
“Order that until further order all medical treatment provided by the defendant to John Robert Thompson be provided with the intention of preserving his life and promoting good health.”
The object of the court’s orders should be to ensure that Mr Thompson’s life, health and welfare are maintained. To that end the orders should ensure that appropriate medical treatment and rehabilitative procedures are made available for him, and that such treatment, as well as appropriate support and nutrition, should not be withdrawn without further order of the court.
Furthermore, in view of the concern expressed by the plaintiff and the members of Mr Thompson’s family about the circumstances in which the Not For Resuscitation order was imposed on Mr Thompson at RPAH I am of the opinion that it is appropriate to prevent any further such order being imposed on him without the leave of the court.
The claim by counsel for the plaintiff for an order for costs on an indemnity basis raises questions of principle which were not argued in any detail in the course of the hearing of this matter. Leaving aside the provisions of the Supreme Court Rules relating to offers of compromise (Pt 52 r 17), the making of an order for costs on an indemnity basis generally betokens that a claim has been made that is wholly unjustified or that a defence has been raised that is deliberately false or time wasting or that there have been some circumstances in relation to the conduct of the case which call for a departure from the usual order for costs and by so doing to record the courts disapprobation of the course taken. (see Degmam Pty Limited (in liq) v Wright No 2 (1983) 2 NSWLR 354 per Holland J; Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 at 542 per Kirby P; Hobartville Stud Pty Limited v Union Insurance Co Limited (1991) 25 NSWLR 358 per Giles J.) There were no circumstances in the conduct of the present case of a kind that would justify the making of an order for indemnity costs. Accordingly I do not think it appropriate to exercise a discretion to make such an order.
Prior to 1 July 1994 awards of costs on a basis which differed from the usual party and party basis, but which did not involve indemnity costs, could be made in appropriate cases in the exercise of the discretion conferred on the court by s 76 of the Supreme Court Act 1970. These included costs on a common fund basis (Pt 52 r 30), on a solicitor and client basis (Pt 52 r 33)or a trustee basis (Pt 52 r 31). However, since 1 July 1994 those bases no longer apply except “as otherwise ordered by the Court in relation to particular proceeding” (Pt 52 r 1(1)(c)).
In the present case the plaintiff was appointed as tutor for Mr Thompson. As is required by Pt 63 r 4(6)(b) the solicitor for the plaintiff certified that she had no interest in the proceedings adverse to Mr Thompson and as is clear from the evidence her only interest in the proceedings has been to preserve the life and well being of her brother. In those circumstances, in relation to costs she should be regarded as being somewhere between an ordinary litigant and a trustee.
In my opinion it would be appropriate in the circumstances for there to be an order for costs on a common fund basis, pursuant to an order to that effect made by the court in the particular proceedings.
The orders of the court will be that:
1.Until further order and whilst ever John Robert Thompson remains in a hospital or other institution within the area and under the control of the defendant:
a)John Robert Thompson be provided with necessary and appropriate medical treatment directed towards the preserving of his life and the promoting of his good health and welfare;
b)no Not for Resuscitation Order be made in respect of John Robert Thompson without prior leave of the court.
The defendant is to pay the plaintiff’s costs on a common fund basis.
The proceedings are to stand over generally with leave to restore on 7 days notice.

-o0o-

LAST UPDATED: 18/01/2001

[2000] NSWSC 1241

29 December 2000