Qumsieh v Pilgrim

[2000] HCATrans 34

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M98 of 1998

B e t w e e n -

SHERIN QUMSIEH

Applicant

and

LANCE PILGRIM, constituting THE GUARDIANSHIP AND ADMINISTRATION BOARD

Respondent

Application for special leave to appeal

McHUGH J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 11 FEBRUARY 2000, AT 11.14 AM

Copyright in the High Court of Australia

MRS S.M. CRENNAN, QC:  If your Honours please, I appear on behalf of the applicant with my learned friends, MR P.J. HANKS, QC and MR M.D. TOWNSEND.  (instructed by Vincent Toole)

McHUGH J:   A Deputy Registrar has been informed by the Victorian Government Solicitor, the solicitor for the respondent in the matter, that the respondent does not wish to be represented at the hearing of the above matter and will abide by any decision of the Court, save as to costs.

MRS CRENNAN:   If your Honour pleases.  Your Honours, the difficult issue is whether the Guardianship Board on this occasion lawfully appointed a guardian for the applicant.  It was an appointment that had the effect of reversing or overriding her clear, repeated and competent refusal of a specific medical treatment, namely a blood transfusion; and a central question arising in the setting of the case is whether or not there are positive obligations cast upon a board when a decision it makes has the capacity to override a clear and competent refusal, where there are positive obligations in exercising its functions to seek to ascertain the wishes of the person concerned, and the special leave questions to be found at page 210 of the application book identify those issues.

McHUGH J:   But is there not a problem about the grant of special leave on the ground that any relief would be futile, orders being discharged?

MRS CRENNAN:   We would say no, your Honour, because, first of all, Parliament has provided that a remedy of a declaration of invalidity is available in this setting.  That is one point.  Secondly, your Honour, we would say ‑ ‑ ‑

McHUGH J:   What do you mean exactly by that, that Parliament is - - -?

MRS CRENNAN:   Well, it is available to an applicant in these circumstances to seek a declaration of invalidity, even though the effect of the order, if you like, is actually spent.  In other words, we would say, Parliament has left available the possibility of raising a controversy ex post facto.

McHUGH J:   But is there a statutory provision to that?

MRS CRENNAN:   Yes, there is, your Honour.  If I take your Honour - your Honour has our folder which contains the Administrative Law Act and that is to be found under A1, and without reading it, if I can point out to your Honour that section 7 which identifies the power of the court, indicates in the second last line that there can be:

proceedings for a declaration of invalidity in respect of the decision –

and also, your Honours, in section 11 which covers standing, there is reference there to the possibility that a person affected – this is at about ‑ ‑ ‑

McHUGH J:   I am sorry, what section is it?

MRS CRENNAN:   Sections 7.  I am sorry if I am rushing your Honour.

McHUGH J:   No, that is all right.

MRS CRENNAN:   Does your Honour have that?

McHUGH J:   Yes.

MRS CRENNAN:   Yes, your Honour, second last line, a power to make a declaration of invalidity ‑ ‑ ‑

CALLINAN J:   But in making a declaration of that kind, the utility of a declaration, if granted, whether it would have any utility, would be a relevant discretionary consideration in deciding whether to grant it or not.

MRS CRENNAN:   Well, your Honours ‑ ‑ ‑

CALLINAN J:   It is not like, for example, Ainsworth’s Case where there was real utility in granting a declaration, and the statute does not exclude discretionary considerations, does it?

MRS CRENNAN:   Well, before I leave the Act, section 11 is also relevant, if your Honours wish to look at that.

But to answer Justice Callinan’s query, may we answer it this way:  the decision which is now spent provided the authority to override her explicit wishes.  She is a 22-year-old lady.  She took many steps to draw to the relevant authorities her explicit wishes.  It is not impossible that she may find herself again, during the course of her life , being in a situation of others taking the view that she requires a blood transfusion, so the events could recur in her life.  They are a public law issue.  There are obligations, we would say, of a quite serious kind cast upon boards in these circumstances, and then what is relevant is perhaps the unusual circumstances and the time pressures that prevail in circumstances of this kind.

McHUGH J:   Yes, but what purpose does it serve?  What purpose would making a declaration serve?

MS CRENNAN:   Well, it clarifies her position, which may be relevant in the future, and ‑ ‑ ‑

McHUGH J:   “Which may be” – in what way?  The circumstances may be ‑ ‑ ‑

MRS CRENNAN:   Well, your Honour, she may have a car accident.

McHUGH J:   Yes, but she may not have – well, she may, all sorts of things could happen to her.

MRS CRENNAN:   She may.  She has taken every step that she can conceivably take, she would say, in relation to seeking to assert what your Honour called a right of control and self-determination in respect of her own body, in Marion’s Case.

CALLINAN J:   But these cases will all depend upon their own particular circumstances.  She might have a different view in the future.

MRS CRENNAN:   She may.  She may, but as a matter of practicality, if she cannot raise the issue in this context, she can never raise it.

McHUGH J:   But if the order was made without power because it was invalid, then there is nothing to stop her suing in tort, is there?

MRS CRENNAN:   Well, she could do that, but she is surely entitled to a preference to seek declaratory relief which may be of a ‑ ‑ ‑

McHUGH J:   But why?

MRS CRENNAN:   Because, your Honour ‑ ‑ ‑

McHUGH J:   I mean, courts have frequently refused to make declarations.  In Gardner v Dairy Industry Authority, the Court held the order in that case, having been rescinded, it would make a declaration concerning its invalidity.

MRS CRENNAN:   But, equally, your Honour, with respect, Park Oh Ho, there have been certain contexts, admittedly limited contexts, in which courts have been willing to make declarations for one reason or another, and it is important to remember, perhaps, that she has no capacity, in an unconscious state, to take a pre-emptive strike, if you like.  So she has no ability to be heard in relation to an important right and it is important to her, we would urge, to have the issue resolved because the right itself is so important and it has been ignored in this context for one reason or another.  She, in her own affidavit, has indicated her anxieties for the future in that respect and the fact that she would wish to have the matter clarified in so far as she has a very important common law right which has been ignored to her great subsequent distress on this particular occasion.

So we would say that when one considers her state where she was unable to ward off the sincere efforts of others, to ignore a right that is most important, she was unable to instruct lawyers and one has to remember that the transfusion constitutes an assault in the absence of either her consent or some authorisation such as that which eventually followed from the Board’s decision, and that is not an unimportant matter, and we would say when you consider those sui generis circumstances she should have a right to raise a controversy ex post facto without it being said as against her seeking to do that, that she has the ability to sue in common law.  After all, if she had a declaration of invalidity which the Administrative Law Act indicates she is entitled to seek, that assists her in any future decisions in relation to whether or not she does take the matter further.

Added to that, we would urge that there is a law issue of public importance in so far as guardianship boards and tribunals around the country have cognate obligations to those which are to be found in section 4 of the Guardianship Act.  If I can perhaps for a moment just take your Honours to certain passages in the application book which deal with the precise sequence of events as they unfolded.  If your Honours go to application book 112 and 113, your Honours will see there that she signed an advanced medical directive which indicated her resolute refusal of a particular treatment on 15 January, just a few weeks before the birth of her child.

She then was delivered of a child on 20 February and she was subject to certain treatment as a result of haemorrhaging thereafter.  If your Honours turn to application book 128, your Honours will see in the penultimate paragraph there in her operation report that her express refusal of certain treatment was well known to the surgeon and she in fact endured quite a radical operation on the basis of the beliefs which she had.  They are referred to again over the page at 129 at line 34.

Then, your Honours, if you go to application book 16, your Honours will see that she had signed on the occasion of her admission to the hospital on the 20th a consent to operative treatment and at the midpoint of the page, line 14, you will see that she expressly, in hand, has indicated that although she will consent to a whole range of operative procedures, she wishes to exclude blood transfusions.  That document was, in fact, before the Board.

Then, your Honours, if you go to application book 146, your Honours will see there that there was a transfer which is reported in this handwritten doctor’s note of her from the Mercy Hospital to the Western General Hospital.  Your Honours, we draw attention to the fact that her particular beliefs are identified as the top of this note and also in the first line.  Then, at line 15, your Honours – if you read 15, 16, 17 and 18, you will see that the referring doctors sending her to the Western General Hospital drew attention to her position.  Then, your Honours, at page 147, at about line 26, again it is noted that she declines blood products.  Then at page 148, last two lines of the page, these matters are noted again.  Page 149; that is the next day after the day of the birth.  Her beliefs are noted at line 11.  Then there is the three-line passage which contains an asterisk to the left.  At 150, at line 21 - - -

McHUGH J:   What is this going to?

MRS CRENNAN:   Well, your Honours, we wanted to spend a moment just going through that because what it is going to is that she, on a continuous basis, over the four-day period, reiterated what she had indicated on admission that she wished to refuse a particular medical treatment.

McHUGH J:   Yes.  That goes without saying, that is as plain as a pikestaff, but how does it affect the issues that were before the Board?

MRS CRENNAN:   Well, your Honour, this way:  if I may go to the application book, page 4, and if I can direct your Honours’ attention to line 25.  It sets out there section 4(2) of the Guardianship Act and it sets out Parliament’s intention in respect of the exercise of functions, powers and so on.  They are “to be exercised or performed”, and then if your Honours go over the page, “so that” whatever means is applied “is the least restrictive of the person’s freedom of decision and action”, “best interests”, and then relevantly for our purposes:

the wishes of a person…..are wherever possible given effect to.

Now, your Honours, the relevance of what I previously was seeking to draw to your attention is the abundance of material that was available in respect of her competent refusal.

Now, if your Honours look at the Board’s decision as it is set out on page 5, you will see at line 11 they rely on the fact that she “was unconscious and on ventilation”.  And then their findings are set out at 14 and 15 that she has a:

disability within the meaning of s3 of the Act, namely intellectual impairment.

Now, of course, there is a real issue as to whether or not that phrase is apposite in any event for circumstances in which a person has lapsed into unconsciousness because of medication which has been administered but has been perfectly competent prior to the lapse, has continually indicated a refusal in respect of certain treatment and one can imagine perfectly competent after a return from the state of unconsciousness.

McHUGH J:   No, but you concede, do you not, that the Board was not given the advance medical directive nor was it given any other evidence which showed that the applicant’s decision to refuse a blood transfusion was made competently and repeatedly?

MRS CRENNAN:   We do concede that, your Honour, but what we say in that context is that there were duties cast upon the Board, under section 4, which required it to be alert to the wishes of the person concerned, and inquiries would have elicited the type of material to which I was directing your attention, and not - - -

McHUGH J:   I appreciate what you say, but the Board was told that she was unconscious and on ventilation and the Full Court said that it would make their task almost untenable if they had to go and make inquiries about – what, are they to go and interview the neighbours and interview everybody else?  Send out private inquiry agents?

MRS CRENNAN:   No, we are not suggesting that at all, your Honour.

McHUGH J:   Well, what were they supposed to do?

MRS CRENNAN:   The Board had before it an indication of her refusal on her admission to hospital because the consent form which I showed you at application book 16 expressly contained her refusal.  Now, we would suggest that there is a duty cast upon the Board in these circumstances to check whether that wish has continued and the plain answer would have been, yes, of those who were present.  Whether it had been continued in circumstances where she was informed of the risks to her, the plain answer would have been yes.  Your Honours, we would suggest that is not a particularly onerous task to place upon a board having regard to section 4 and having regard to the fact that the right to control and determine matters in respect of your own body has always included the right to make decisions which others may find foolhardy, irrational, decisions with which they do not agree and so forth.

Now, Mr Justice Beach, when the matter came before him, said this saved her life.  No court exercising its discretion would grant an order nisi for review.  Now, by way of answer, we would say, your Honours, that because the common law principle does permit a person to have that right of control, having the right to refuse to consent to a specific treatment without being required to justify it in any way at all, that the effect of a decision does not really meet the point which the applicant is seeking to make, namely that she recurrently expressed her position.  She was competent when she expressed her position.  This, in a sense, is the real vice of the Board’s lack of inquiry about her wishes because there is no suggestion of any incompetence at any point until such time as she has lapsed into unconsciousness by reason of medication.

Of course, Malette’s Case, which we have given you, in Canada, concerned a situation where the person is unconscious when arriving at hospital but has an advance medical directive of the kind, which is also contained in the application book, in which the Court of Appeal of Ontario found her refusal of consent was a continuing one. 

Perhaps, your Honours, the point is made a bit clearer if I were to say imagine the circumstance where someone has consented to an operation.  One could not suppose at the moment they lapsed into unconsciousness or are subject to anaesthetic that that is no longer a continuing position of a competent person.  One could ask rhetorically, “Why is it that a resolute refusal, which is repeated in the full knowledge of all the risks to her, should not be a continuing one?”  The fact that the Board made no inquiry in relation to that meant that that was never elicited.  So, the effect of what the Board did by the lack of inquiry, which we would say is obliged by the statute, was to override a competent refusal and a continuing competent refusal. 

That, we would say, is a very important issue in terms of the principle and we would suggest respectfully that that particular issue was not addressed by either his Honour Justice Beach or in the Court of Appeal.  We would also make the point that the fact that the Board was even approached underlines the consciousness of the hospital involved, that the facts did not fall within any of the exceptions to the principle, some of which are dealt with by their Honours in Marion’s Case, and we would say that the Board was charged with duties which, in their exercise, had a real capacity to override or render irrelevant a competent and continuing refusal, and that their conduct on this occasion meant that that was the effect of the decision they made.

We would suggest that in so far as the Court of Appeal’s error was in declining to set the order below and order that an order nisi would go, we are seeking special leave in respect of that essentially on the basis that I have identified, that there is a real issue about the validity of the Board’s decision and a real issue of public importance, not only for her in the future but for guardianship boards and tribunals generally which have cognate duties to those set out under section 4.  If your Honours please.

McHUGH J:   The decision in a case of this nature depends, as would any future case affecting the applicant, on its own facts.  This consideration and the fact that the events are in the past militate against the grant of special leave.  The Court of Appeal gave a number of reasons for refusing the decision.  It is unnecessary for us to say anything about them.  It is sufficient to say that having regard to the facts of the case, nothing about it warrants the grant of special leave to appeal.  The application is dismissed.

MRS CRENNAN:   If the Court pleases.

AT 11.36 AM THE MATTER WAS CONCLUDED