Todd v South Eastern Sydney Local Health District ABN 70442041439
[2021] NSWSC 1288
•4 October 2021
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New South Wales |
Case Name: | Todd v South Eastern Sydney Local Health District ABN 70442041439 |
Medium Neutral Citation: | [2021] NSWSC 1288 |
Hearing Date(s): | 4 October 2021 |
Date of Orders: | 4 October 2021 |
Decision Date: | 4 October 2021 |
Jurisdiction: | Common Law |
Before: | Rothman J |
Decision: | (1) Direct the plaintiffs’ solicitors and the CSO to speak about the aspect of the administration at the Hospital but otherwise for the arranging of a facility that might be willing to administer the regime and transport to that facility. |
Catchwords: | Injunctions – mandatory interlocutory injunction – patient’s family seeks administering of medical regime for hospital in treatment of sepsis – some doubt as to duty of hospital to administer family-required treatment – orders as sought denied – possibility of orders removing patient to another facility if sought |
Legislation Cited: | Civil Liability Act 2002 (NSW), s 5O |
Category: | Procedural rulings |
Parties: | Anastasia Todd (First Plaintiff) |
Representation: | Counsel: |
File Number(s): | 2021/00282558 |
EX TEMPORE JUDGMENT
HIS HONOUR: Before the Court is an application for urgent mandatory injunction against the South Eastern Sydney Local Health District in relation to a particular patient that is admitted to care at St George Hospital. The current patient is admitted to St George Hospital and was originally admitted with Covid 19.
The Covid-19 infection has passed and the patient is no longer suffering from the original infection of Covid-19. However the patient is critical and in intensive care as a result of infections, the source of which may be the hospital itself, but nevertheless infections that are post-Covid.
None of what has occurred before the Court in the course of this application has been suggested as a basis upon which Covid-19 could be treated or its effects ameliorated.
That which is sought is the administering of a regime, essentially of high doses of vitamin C, high doses of vitamin D and zinc sulphate on the basis that it is suggested that some overseas studies and protocols and some work that has been done in Australia and New Zealand, if New Zealand is not otherwise counted as overseas, suggests that such dosages can be effective in the treatment of sepsis which is essentially that from which the plaintiff now suffers.
The plaintiff of course does not appear in the proceedings personally but is represented by his daughter who, for obvious reasons, seeks to have undertaken any possible regime that may ultimately prove beneficial to the patient.
On the evidence before the Court it would have to be said that there is some anecdotal evidence to the effect that dosages of this kind and a regime of this kind has been of benefit to some patients. There is also evidence from the head of the ICU which has the care of the patient, that they do not see any benefit in the regime and would be reluctant, if not opposed to, the administering of the dosages in ICU. A number of factors arise.
First, for obvious reasons, I think it is fair to say of both the plaintiff and those that represent the plaintiff, including his daughter, and of the defendant, that everybody is seeking an outcome which is for the best benefit of the patient.
The second aspect is that in the area of medicine, fortunately or unfortunately and particularly associated with Covid, there have been a number of less than scientific proposals in relation to treatment. While he now says it was a joke, one only has to recall a former President of the United States suggesting people drink antiseptic or bleach, and that aspect necessarily complicates that which is before the Court. But we are not here dealing with Covid or a treatment for Covid. We are dealing with, in effect, a treatment for sepsis.
The order that is sought is that the defendant administer the treatment outlined in the affidavit of Dr Cosford at paras 13 and 14. However, that order was amended to make clear that the treatment that was sought was confined to the vitamin C, the vitamin D and the zinc sulphate as proposed in, I think, paras 13, 14 and 15 of the said affidavit.
There are difficulties with it. First, and obviously, not only because of this patient, Covid-19 is a pandemic from which the community is suffering and there are particularly onerous restrictions in place in the hospitals and in particular in the intensive care unit relating to the avoidance of the spread of Covid-19 both to hospital staff and to other patients.
The second aspect is that the doctors and/or nurses who are engaged as staff at the intensive care unit at St George Hospital are not in a position where they would be prepared to administer the medication that is sought. It is conceded that it is inappropriate for the Court to require the doctor, or a staff member for that matter, to administer medication which they consider to be inappropriate.
It is submitted that the Court lacks jurisdiction to make such an order. I doubt that the issue is jurisdictional, but I do not think it matters. The overwhelming discretionary aspect would be such that one could not imagine a court forcing a doctor to undertake treatment that the doctor considered detrimental or of no benefit.
The medical evidence that is before me is interesting and in one sense not inconsistent. I have before me some affidavits from proceedings that apparently occurred earlier than these proceedings and related, it seems, to the treatment of Covid-19 rather than that which is before the Court. In particular that which has been relied on in this proceedings is the Affidavit of Professor Brighthope, who was available to give evidence, for which I am grateful, and I also had available and have read the affidavit of Professor Christine McCartney, which was read in the earlier proceedings and dealt with the proposals of Professor Brighthope in relation to those earlier proceedings and those matters.
The difficulty with the evidence such as it is, from the point of view of the defendant, and one of the reasons that I say that the expert evidence is not necessarily inconsistent, is that the intensivists suggest that the regime would not benefit the patient but do not testify that it would harm the defendant.
There can be little doubt that the regime is not a regime which is generally accepted by practitioners in the area dealing with these problems. However, with the possible exception of the longer term effects of high doses of vitamin C, the specialist at ICU did not say that the regime would actually harm the patient. On the current regime of treatment, it is anticipated that the patient will die relatively shortly, by that I mean within the next few days, although of course these prognoses are never certain.
The second aspect is that the evidence of Professor McCartney, probably because it was directed to issues associated with Covid-19, rather than post Covid-19 treatment, deals with the efficaciousness of such a regime in treating Covid-19. I have no doubt that a regime of this kind would not be effective in the treatment of Covid-19 and, were that the issue before the Court, we would not have got to this stage.
Rather the treatment that is proposed or the regime that is proposed is a regime that is seeking to increase the patient’s own capacity to utilise his own immunity to deal with the infections that are at this moment critical and seemingly will in the longer term cause his death.
The circumstance that the Court is not inclined to force a doctor in ICU to administer the regime, and that inclination is one supported by both the plaintiff’s barrister and certainly suggested by the defendant, is one that forces the Court into two other options that may be available. The first and the most obvious is the removal of the patient from the care of St George Hospital and the removal to a facility that would enable the regime to be implemented.
It is said that the removal of the patient would be detrimental to the health of the patient, although I have to say everything is relative. Given that the prognosis is the patient is going to die in a few days, I am not sure whether the removal is, relative to that possibility, necessarily inappropriate.
The third option is that the hospital allow an approved medical practitioner, who complies with the appropriate protocols, that is presumably, is double vaccinated and has a negative test and is otherwise fitted with the appropriate clothing and equipment that would be necessary for any ICU specialist and is otherwise a doctor who is qualified to work at the hospital, whether that person should be allowed into the ICU to administer the regime.
The defendant says that such an order, that is the last mentioned order, would be inconsistent with the jurisdiction of the Court. I, at this stage, am not aware of why that would be inconsistent with the Court’s jurisdiction but the issues that are raised certainly go to issues relating to the exercise of the discretion that the Court might otherwise have the jurisdiction to exercise. The issues that are raised are, in a sense, similar to the issues raised in relation to the orders that might be made against a doctor. The patient is in the care of the hospital. The hospital which is required, under a whole range of duties of care, to look after the patient, says it is against their professional opinion, based upon their medical experts, to administer the regime that is proposed to be given.
The question that must be asked is why, if the Court as it is, is so fixed on the view that a doctor cannot be forced to administer a regime inconsistent with her or his professional opinion, why the employer of the doctor can be forced to administer or allow the administration of such a regime in circumstances where it is against their opinion. That is a fascinating question. I suppose a corporation including the Local Health District does not have a soul to be damned or a body to be kicked. But it does have duties of care to which it is required to conform.
What are sought are, as is obvious, urgent interlocutory orders. The hearing is occurring on a public holiday and has already taken a number of hours, not including the earlier preparatory work. Evidence has been filed with little capacity on either side to cross-examine.
Neither party has addressed the legal right to obtain these orders. Nor have the parties addressed on the duty on the defendant that is sought to be enforced.
When a person becomes ill, it is not mandatory that the person attend and/or be admitted to hospital, even when recommended. When a patient is admitted to hospital there is ordinarily and usually created a contract between the patient and the entity that operates the hospital. Often it is the representative of an incapacitated patient that creates the contract for the benefit of the patient. Whether or not a contract exists, the entity has a duty of care to the patient.
Generally the duty of care is to implement professional services of a kind and in a manner “widely accepted in Australia by peer professional opinion”: Civil Liability Act 2002 (NSW), s 5O. When a patient is in the care of a hospital, the hospital is not under a duty to administer a regime suggested by the patient or the patient’s family. The choice for the patient and/or the patient’s family is the facility into which the patient is admitted and, ultimately, to require the patient to be moved or discharged. A patient (or in appropriate cases the family) may refuse treatment but I am unaware of any basis in Australia to force a facility into providing particular treatment.
So the issue really comes down to this. I understand fully the attempt by the plaintiff and his daughter to obtain urgent relief at the hospital. The Court would be minded, if there were appropriate facilities, to allow the removal of the patient to a facility that would administer the regime if the plaintiff could find one.
The Court would also be minded to make an order to facilitate the administration of the regime by an approved doctor but it would have to be a doctor that was (a) approved by the hospital, the defendant in particular, and (b) the regime would have to be accepted by the defendant as being one that caused no damage. At the moment neither of those latter aspects is satisfied.
As a consequence I am not, on the balance of convenience and exercising my discretion, minded to grant the order that is sought. However, I will - I have a full day tomorrow commencing at 10 o’clock - I will, if the plaintiff so desires it and can organise it in the meantime, list the matter for 8 o’clock tomorrow morning for the purpose of making any order that conforms otherwise with that which I have just indicated.
In the meantime, I direct the plaintiff’s solicitors and Mr McDonnell, the solicitor at the CSO, to confer regarding the aspect of the administration at the hospital but otherwise for the arranging of a facility that might be willing to administer the regime and a method of transport, if that is desired by the plaintiff.
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Amendments
11 October 2021 - Ex Temp Judgment added
11 October 2021 - Patient inserted.
14 October 2021 - Typographical error
Published without restriction
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