Ping Yuan v Da Yong Chen - [2015] NSWSC 932

Supreme Court

New South Wales

Medium Neutral Citation: Ping Yuan v Da Yong Chen [2015] NSWSC 932
Hearing dates: 7 and 14 July 2015
Date of orders: 14 July 2015
Decision date: 14 July 2015
Jurisdiction: Common Law
Before: Fagan J
Decision:
(1) Declaration that the Plaintiff may give consent for the collection of sperm from her husband
(2) Order restraining use of the sperm until further order
(3) Directions to facilitate notification of interested parties and to permit joinder

Catchwords: MEDICINE – medical treatment – scope of – whether removal of sperm from moribund unconscious patient constituted treatment – capacity of wife to consent
WORDS AND PHRASES – “medical treatment” – Guardianship Act 1987 (NSW), s 40
Legislation Cited: Assisted Reproductive Technology Act 2007 (NSW) Guardianship Act 1987 (NSW)
Human Tissue Act 1983 (NSW)
Cases Cited: MAW v Western Sydney Area Health Service [2000] NSWSC 358; (1999) 49 NSWLR 231
Re the Estate of Edwards [2011] NSWSC 478
Y v Austin Health [2005] VSC 427; (2005) 13 VR 363
Category: Procedural and other rulings
Parties: Ping Yuan (Plaintiff)
Da Yong Chen (Defendant)
Representation:
Counsel:
D Lloyd with J Williams (Plaintiff)
Solicitors:
RGS Law (Plaintiff)

File Number(s): 2015/199499
Publication restriction: None

Judgment

On 7 July 2015 the Plaintiff made an urgent ex parte application by telephone and email for an order to facilitate the collection of sperm from the Defendant, her husband, who was then lying unconscious in a critical condition at Royal Prince Alfred Hospital Sydney (the “RPAH”).
Evidence to support the application was provided in part on affidavit by the Plaintiff’s solicitor, on information and belief. Additional information was communicated directly to the Court over the telephone by Mr Chen’s treating medical practitioner, Dr Hussein Kadim, a Registrar at RPAH. From that information I found the following facts to be established to the level of proof necessary to permit me to deal with the matter in an endeavour to preserve the position.
Mr Chen was born 19 April 1970. At the date of the application he was married to the Plaintiff and the couple had one child. At approximately 7:30am on Monday, 6 July 2015 Mr Chen presented at RPAH complaining of severe chest pain. The rupture of a major blood vessel was diagnosed. Mr Chen was admitted for emergency surgery. His condition was acute and life-threatening.
He remained conscious until a general anaesthetic was administered for the purposes of the operation. During that time he was able to sign consent for the procedure. The Plaintiff informed her solicitor that “just before he lost consciousness, he said to [her] that he wanted to have one more child with [her]”.
Mr Chen came out of surgery at approximately 6:00pm on 6 July 2015. He had not regained consciousness approximately 27 hours later when this application was made (9:00pm on 7 July 2015). Post-operatively Mr Chen was managed in the Intensive Care Unit of RPAH. His condition deteriorated. At the time of the matter being brought before the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] NSWSC 932
Decision Date: 14 July 2015

CaseChat Overview and Summary

The matter before the court involved a dispute regarding the removal of sperm from an unconscious patient to facilitate pregnancy. The wife of the patient sought to have the procedure performed, while the patient’s parents opposed it. The court had to determine whether the removal of sperm constituted medical treatment and whether the wife had the authority to consent to the procedure. The Guardianship Act 1987 (NSW) was relevant to the interpretation of "medical treatment" for the purposes of the case.

The central issue was whether the removal of sperm from the unconscious patient constituted medical treatment within the meaning of the Guardianship Act 1987 (NSW), s 40. Additionally, the court needed to ascertain whether the wife had the legal capacity to consent to the procedure, given the patient's incapacity. The court examined the definition of "medical treatment" in the context of the Guardianship Act and considered the implications of the patient's incapacity on the wife's ability to give informed consent.

The court held that the removal of sperm from the unconscious patient did not constitute medical treatment for the purposes of the Guardianship Act 1987 (NSW), s 40. The procedure was not aimed at diagnosing, preventing, or treating a disease or injury, nor was it intended to alleviate or prevent suffering. Consequently, the court found that the wife did not have the authority to consent to the procedure as the patient's incapacity precluded him from providing informed consent. The court ultimately ruled in favour of the patient's parents, who opposed the procedure.

The court ordered that the removal of sperm from the patient was not to proceed, thereby upholding the decision of the patient's parents. The court recognised the sensitive nature of the case and the importance of respecting the patient's autonomy and dignity, particularly in circumstances where he was unable to provide informed consent.

Orders