re King
[2007] VSC 151
•24 April 2007
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 5831 of 2007
| IN THE MATTER OF AN APPLICATION BY JOHN WILLIAM HERRINGTON for a declaration concerning Rosalie Anne King | Plaintiff |
| and | |
| AUSTIN HEALTH | Defendant |
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JUDGE: | WILLIAMS, J. | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 April 2007 | |
DATE OF JUDGMENT: | 24 April 2007 | |
CASE MAY BE CITED AS: | In the application of Herrington; re King | |
MEDIUM NEUTRAL CITATION: | [2007] VSC 151 | |
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DECLARATION - Parens Patriae jurisdiction - Application for order that medical treatment be resumed – Patient receiving palliative care - Whether treatment in best interest of patient
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant/Plaintiff | Mr F D Saccardo S.C with Dr S L Keeling | Holding Redlich |
| For the Respondents | Mr M Regos |
HER HONOUR:
By an originating motion filed today, Mr John Herrington has made an application for orders that medical treatment be provided to his partner, Ms Rosalie King. Ms King is a patient who is in what her treating doctors call a persistent vegetative state at the Austin Hospital (“the Austin”).
Before I proceed to consider the application, I note that I have been informed that there is technically a guardianship application in relation to Ms King before VCAT made by a social worker from the Austin. I was informed that VCAT had requested a report from the Public Advocate's Office. Mr Julian Gardner of the Public Advocate gave evidence before me to the effect that, after making relevant investigations, a delegate of the Public Advocate had decided that intervention was not necessary because this was not a case in which the Austin was offering Ms King treatment which could be refused. I note that no submissions have been made to the effect that the Court ought to be concerned with the VCAT process.
Background
I now return to consider the application. I will start with the sequence of events which have led up to it.
It is common ground that Ms King suffered a hypoxic arrest on the second day after her admission to the Royal Melbourne Hospital, following an accident in which she had been severely injured on 19 October 2006. The arrest resulted in Ms King suffering substantial hypoxic brain damage.
On 21 November 2006, she was transferred from the Royal Melbourne Hospital to Ivanhoe Manor, a facility which cares for people with such severe injuries. At that time, she was not communicating verbally or non-verbally and she was not responding to commands. She was doubly incontinent and made only non-specific jerking movements of her upper and lower limbs, which were quite spastic.
At this point in my description of the chronology of events, I will refer to the evidence given to the Court by Dr William Silvester, an intensive care specialist at the Austin. He is also a member of the NHMR Advisory Committee on conditions of patients with persistent vegetative state and the director of the Austin's “Respect for Patient Choices” program. I mention his evidence here because, coincidentally, he happened to see Ms King at Ivanhoe Manor on 13 February 2007, during a visit with an NHMR team taken to her bedside. Dr Silvester told the Court that he watched Ms King being examined by a member of staff at Ivanhoe Manor and that she demonstrated to him all the signs of being in a persistent vegetative state at that time. She was then being fed, with difficulty, with a naso-gastric tube.
Ms King has been back to hospital from Ivanhoe Manor on several occasions suffering from infections. She was admitted to the Austin on 3 December 2006. She was diagnosed as having a chest infection and, ultimately, staphylococcal septicaemia. On 8 January 2007, a PEG tube was inserted because of the difficulty in naso-gastric feeding. She went back to Ivanhoe Manor on 30 January 2007.
Subsequently, on 26 February 2007, Ms King was admitted to St Vincent's Hospital and was found to have an obstructed right kidney. She also had no gastric motility.
She was transferred to the Austin on 14 March 2007, displaying only occasional jerking movements of the upper and lower limbs and no spontaneous movement. She has had numerous health problems since, battling infections with multiple antibiotics.
Dr Helen Dewey, an experienced neurologist, the head of the stroke unit at the hospital, examined her on 28 March 2007. Dr Dewey concluded that she had suffered severe hypoxic brain injury, with no evidence of a meaningful response to the environment, (meaning no response to voice noise, pain or visual target). Dr Dewey said that this was consistent with a vegetative state, although she could not actually make that diagnosis having seen Ms King only once.
However, Ms King has been diagnosed as being in a persistent vegetative state by a number of people, including the rehabilitation specialist who cared for her at Ivanhoe Manor, Dr Karen Patten. Dr Patten gave her opinion about Ms King to Dr Silvester, who read his notes of their conversation to the Court. Dr Patten was of the view that Ms King had no chance of recovery, six months after hypoxic brain injury. Dr Silvester has not been part of Ms King’s treating team, but he discussed his beliefs and his concerns about her state with the members of that team after seeing her at their request again on 22 March 2007.
On 12 April, Ms King’s PEG feeding was ceased because of the danger of vomiting. A meeting was called with her partner, Mr Herrington, and her family, and it was felt by the clinicians that the most appropriate care was palliative, as she had been in a vegetative state for over a period of four months at the Austin. Palliative care meant that her feeding, antibiotics and blood examinations would be stopped. Measures would be taken for her comfort.
Dr Silvester examined Ms King again today and got no responses from her, although she does still blink and have spasms known as myoclonic jerks, which involve her moving her head. The jerks are signs of severe brain damage. In the opinion of Dr Silvester, Ms King is being appropriately treated with palliative care. It is his view that if she were to be given fluid treatment for re-hydration, she could suffer from pulmonary oedema or infection as a result. If she has an infection, then additional problems could occur. Her current low dose of morphine is not, in his opinion, likely to have been the cause of her current situation of hardly breathing. Dr Silvester also told the Court that Ms King's body is in a rigid position with her legs crossed, making her personal care very difficult for those looking after her and resulting in their actions causing her discomfort. Dr Silvester perceived her to grimace in a silent scream when pressure was applied to her body.
Associate Professor O'Brien, the head of Medical Unit 5, informed the Court of his view that Ms King is now in an advanced state of renal failure and that any attempt to treat her would be likely to precipitate pulmonary oedema and hasten her death. He says that she may also have additional suffering if intravenous devices were to be used to give her fluid. Professor O'Brien's evidence was very similar in effect to that of Dr Silvester. He and Ms King's treating team are of the view that there is no point in treating Ms King. Whilst he conceded under cross-examination that a drip could be inserted and that Ms King could be given fluids, Professor O'Brien does not think it would preserve her life. He said that she is terribly wasted, her death is imminent and that the administration of fluids might even shorten her life.
Dr Erosha Premarakne, Ms King’s treating specialist physician and endocrinologist, also gave evidence to the court. Dr Permarakne said that it would be very hard to give Ms King her fluids by intravenous methods because her veins had deteriorated to such an extent that any canula tended to go into the tissue around the broken vein. As a result, subcutaneous fluids had to be administered into the space between the skin and the deep tissues, causing local swelling on occasions and limiting the possible quantity of fluids which could be administered. Dr Premarakne expressed the opinion that Ms King's death was inevitable and fluids would have no favourable outcome, as in her opinion their administration would be futile.
The consensus of medical opinion before the Court was to the effect that there would be no clinical justification for the administration of any treatment, other than by way of palliative care to Ms King at this point. It would be cruel and unethical, according to Dr Silvester, to cause her the level of pain which would result from any further attempt to re-hydrate her.
I also heard from the applicant, Ms King's partner, Mr Herrington. He has been with her every day in hospital, and he believes that she does show signs of responding to him by blinking and moving her head. He feels that he has observed her more than the medical staff have done, because he has been constantly by her side. He told the Court how devoted the couple were to each other. He said that Ms King would not agree for her treatment to be suspended, if she could communicate now. He is hopeful that the doctors are wrong in their views, as he believes they have been in the past. He said that he would like to have someone independent to see Ms King to assess her. He believes that she will recover if her medical treatment were to be reinstated.
Affidavits were also filed by Ms King's parents and a social worker, Mr Glen Peters. They spoke of the aboriginal cultural approach to illness and disability. They told the Court that aboriginal people believe that a sick person should be cared for and not left to die. Mr Peters also expressed his view that Ms King's parents were intimidated by the doctors' authority. Ms King's father, Mr Maxwell King, states that he too has seen his daughter blink and thinks she can understand things. He thinks she should be given more time and wants her to be given food and drink in accordance with aboriginal cultural values. Ms Annie King, Ms King's mother, has also seen her blink and thinks that she can communicate. She believes that she should be given more time to recover. She points out that aboriginal culture involves caring for people who are unwell.
Counsel for Mr Herrington asks the Court to exercise its parens patriae jurisdiction and to, in effect, act as Ms King's guardian in assessing what is in her best interests. He agrees with Mr Regos, who appears for Austin Health Care, that the Court must consider what treatment of Ms King is reasonable in the circumstances. Ultimately, he submits that the Court must balance all the matters in evidence, but that that balance should be weighted in favour of maintaining Ms King's life.
Mr Regos responds that the reasonable course is to spare Ms King the potential further suffering identified by the doctors and to maintain the status quo. He says that the evidence is to the effect that she will not recover and that it is not in her interest to prolong her life. He argues that the Austin is looking after Ms King in the best way.
Counsel for Mr Herrington told the Court that, despite his efforts, no medical examination had been able to be arranged to date, even though Ms King has now been without sustenance since 12 April 2007. During the hearing this afternoon, Mr Herrington’s solicitor did contact a neurologist, Dr Starke, who said that he could examine Ms King tomorrow, but would not be able to give a report until Thursday, by lunch time. However, most significantly, Dr Starke stated that he would not be available at any time to give evidence to the Court.
The authorities make it clear that in the exercise of the parens patriae jurisdiction, Ms King's interest is to be regarded by the Court as being paramount. The Court must act in the best interests of her health and welfare in all the circumstances, responding to the situation with which it is confronted.[1]
[1]See: Secretary Department of Health and Community Services v JWB & SMB (Marion's Case) (1992) 175 CLR 218 at 260 per Mason CJ, Dawson, Toohey and Gaudron JJ.
I have read all the materials put before the Court. I have taken into account all the evidence. I recognise the concern and anguish of Ms King's partner and her family and their desire for her to continue to live. I have considered everything said about the cultural values of aboriginal society by them and by the social worker, Mr Peters.
However, I can only act on the evidence before the Court. I am satisfied by the only evidence before me that it would not be in Ms King's interests to recommence any treatment involving the administration of fluids, as Mr Herrington urges, even on a short term basis. The only evidence before me is that it is the universal opinion of the medical witnesses that that treatment would be futile and, possibly, that it would have the effect of hastening her inevitable death. They also believe that Ms King is likely to suffer unwarranted pain and indignity from any further treatment measures.
I have taken into account Mr Herrington's pleas that the Court should make the order he seeks and his views as to what Ms King’s wishes would have been. However, in all the circumstances I do not think it would be in Ms King's best interests to make those orders. In my opinion, it would not be reasonable to administer treatment, even if it would prolong Ms King's life for a few days, when it would serve no therapeutic purpose[2]. There is no evidence to persuade me that it would be in her interest to discontinue her present regime of palliative care, even on an interim basis, and I will refuse the application.
[2]See: Airedale MHS Trust v Bland [1993] 1 All ER 821.
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