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CAMERON STEWART[*]
[The Australian common law suffers from a lack of judicial authority on the right to die, in particular the right of patients to make anticipatory decisions to refuse treatment. Recent cases concerning the right of patients to refuse life-saving blood transfusions have highlighted the need for a substantial judicial clarification of this area. This article critically examines one of the most recent Australian cases in detail and compares its approach with those from other common law countries. After taking this comparative analysis the article puts forth a common law model of anticipatory decision-making and examines how that model might work in the context of current legislative frameworks.]
The recent decision of the Victorian Court of Appeal in Q v Guardianship & Administration Board & Pilgrim[1] has highlighted some of the difficult issues that arise when a patient refuses life-sustaining treatments through the mechanism of an advanced directive.
The case was concerned with a decision by the Victorian Guardianship and Administration Board (‘the Board’) to appoint a temporary guardian, who then proceeded to override a patient’s decision to refuse blood products. The decision of the Court of Appeal raises serious questions about the status of treatment refusals and the relationship between the guardianship legislation and the common law right to self-determination.
The decision in Q’s Case is also illustrative of how little we know about the Australian common law right to refuse treatment. The dearth of judicial commentary has created uncertainty in this whole area of law. The recent deaths of two patients in Queensland who had refused treatment on religious grounds have highlighted the need for a clear judicial pronouncement of the scope of rights and duties in this field.[2]
In an effort to alleviate this uncertainty, this article examines and attempts to clarify the legal rights of patients to refuse treatment. It begins by reviewing the facts and issues surrounding Q’s Case. The article then examines the place of the right to self-determination in Australian common law. The right to make binding anticipatory decisions or advanced directives[3] will also be discussed and a common law model is formulated for assessing the validity of anticipatory decisions. The article then proceeds to examine the effect of legislation in this area, with an attempt to underline some of the unique problems which became apparent in Q’s Case.
Overall, Q’s Case is disappointing in its failure to clarify the right to refuse treatment. Furthermore, its lack of discussion of the flaws of the original decision by the Board leaves open the scope for abuse of procedure and breaches of fundamental human rights. The article examines these problems and highlights how they have been approached in other jurisdictions. What is needed is a clear judicial pronouncement and elaboration of the common law right to die in Australia. Q’s Case indicates that we still have a long time to wait.
Mrs Q is a devoted Jehovah’s Witness and accordingly believes that the medical use of blood products is wrong, to the point that blood transfusions are considered by her to be morally equivalent to rape and abortion.[4] Mrs Q was in the advanced stages of her first pregnancy when she created a document entitled ‘Advanced Medical Directive’ (the ‘advanced directive’) in which she detailed her intention to refuse blood transfusions ‘under any circumstances’. This document was apparently not in compliance with the provisions of the Medical Treatment Act 1988 (Vic) (‘MTA’), which creates a statutory scheme for the creation of such documents.[5] It also appears from the judgment that Mrs Q had executed, at an earlier time, an enduring power of attorney but, once again, had failed to comply with the provisions of the MTA.
Mrs Q was admitted to hospital in February 1998 for the delivery of the child. During her admission she signed a consent form which documented her consent to operative treatments and the administration of anaesthetic, should they be deemed necessary. Mrs Q took pains to write on the form that she was not consenting to the use of blood products or the administration of blood transfusions.
The birth of the child was successful, however Mrs Q afterwards experienced difficulties with haemorrhaging. An emergency hysterectomy was performed but she continued to suffer from blood loss. The hospital staff were shown Mrs Q’s advanced directive by Mr Q. The hospital continued to withhold blood products, which were becoming increasingly necessary to alleviate Mrs Q’s worsening condition. She was now heavily sedated and unable to communicate a reasoned decision.
Mr Q sought legal counsel to determine if there was any way for his wife’s direction to be overruled. A hearing was then arranged before the Guardianship and Administration Board.
Mr Q sought an order to have the Public Guardian appointed as a limited guardian for Mrs Q.[6] The Board dealt with this application at an urgent hearing and waived the requirements for notice.[7] Persons can be placed under a limited guardianship when they suffer from a disability which renders them incapable of reasonable judgement.[8]
The Board was satisfied that Mrs Q’s incapacity was a disability under the Guardianship and Administration Act 1986 (Vic) and that she was unable to make a reasonable decision. The Board was shown the enduring power of attorney but found that it was ineffectual given that it had not been executed in accordance with the MTA.
The Board was also shown the hospital consent form but found that it was limited to procedures conducted under anaesthetic, and that the evidence did not support it being a refusal which applied in the current circumstances.
Surprisingly, the Board was not told why Mrs Q refused the blood transfusion, nor was the Board shown the advanced directive. Nor was any evidence adduced concerning Mrs Q’s repeated refusals of blood products.
The Board made an order appointing the Public Advocate as a temporary guardian and then made further orders delegating the temporary guardianship to Mr Q. The Board emphasised that they were not making a decision to authorise the transfusion of blood but that they were merely giving Mr Q the authority to make the decision. Mr Q approved the treatment and the transfusions were given. Mrs Q fully recovered.
Mrs Q sought review of the decision under s 7 of the Administrative Law Act 1978 (Vic) and a declaration that the order of the Board was invalid. Beach J gave an untranscribed decision refusing the application, apparently on the grounds that no matter of substantial importance was involved as the matter was now moot.
Mrs Q then appealed to the Court of Appeal. The appeal was based on a number of grounds, including the claim that the Board had acted outside its jurisdiction, primarily because the patient had already exercised a competent and binding refusal of blood products.
On this point Winneke P (who gave the judgment of the court) found that the Board did have jurisdiction as the refusal contained in the consent form only related to the administration of blood products during an anaesthetising procedure: ‘The existence of that jurisdiction is not to be denied, in my opinion, because the protected person has previously made a decision that he or she did not want a blood transfusion in different circumstances.’[9] The Board was well within its rights therefore to ignore the refusal contained in the consent form as it was ‘a qualified refusal to have treatment in certain circumstances at the Mercy Hospital some four days before.’[10] Winneke P also accepted the fact that the Board was not authorising the transfusion but merely empowering Mr Q to make the decision.[11]
Other grounds of review sought by Mrs Q were dealt with quickly by the Court of Appeal. Mrs Q argued that the decision was unreasonable along the lines of the principle enunciated in Associated Provincial Picture House Ltd v Wednesbury Corporation (‘the Wednesbury principle’),[12] had been obtained in bad faith and was tainted by fraud. Winneke P decided not to consider these arguments as his Honour preferred not to dispute the exercise of Beach J’s discretion to dismiss the application for review. In particular, the fact that the order sought to be reviewed was exhausted in any case, coupled with factors such as the Board having changed its powers and functions[13] and the fact that a successful application would have brought Mrs Q into dispute with her husband, meant that the Court of Appeal was unwilling to conclude that Beach J’s exercise of discretion was erroneous.
It appears that an application for special leave to the High Court has been filed.[14]
At first glance, the Court of Appeal’s consideration of Mrs Q’s decisions to refuse blood transfusions as situation specific, rather than as a general refusal, appears to curtail the patient’s right to make a general decision to refuse medical intervention covering all circumstances.
The right to refuse treatment is part of the broader right to self-determination and has been described in the now classic case of Schloendorf v Society of New York Hospital as follows:
Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent commits an assault, for which he is liable in damages.[15]
This right to self-determination has been recognised all around the common law world, including the United States,[16] United Kingdom,[17] Canada[18] and Australia.[19]
Rozovsky puts the proposition thus:
However disturbing a decision against treatment may be, the competent patient retains that prerogative. In the absence of any proof of mental incapacity that makes it impossible for a person to understand the nature and consequences of a refusal of care, his or her decision must stand.[20]
There is a large body of case law from England,[21] Canada,[22] New Zealand[23] and the USA[24] which supports this statement. The right to self-determination has been found to exist even in cases where the patient is not terminally ill but still prefers to die without treatment than live with it.[25]
The principle is so fundamental that it upholds decisions made by patients that may appear to have been ‘badly’ made.[26] As a result, ‘[t]his right of choice is not limited to decisions which others might regard as sensible. It exists notwithstanding that the reasons for making the choice are rational, irrational, unknown or even non-existent.’[27] There have been many cases where a decision to refuse blood products on religious grounds has been found to be valid.[28] For example, in Re Melideo[29] a woman suffering from a severe uterine haemorrhage refused a blood transfusion on the grounds that she was a Jehovah’s Witness. She was not pregnant and had no dependent children. It was found that the state could not demonstrate a sufficiently compelling interest to override the refusal.[30]
As Re Melideo suggests, the right to self-determination is not absolute. Judgments from the United States show that there are a number of state interests which may override it.[31]
The state is said to have an interest in preserving all human life.[32] This public interest provides a justification for overriding the decision of terminally ill people to refuse treatment. However, in cases which only involve the abstract state interest in preserving all life, the right to self-determination will normally win out.[33] The right of self-determination is itself a reflection of the respect which the state gives to life.[34] The value of life may indeed be lessened by court decisions overriding the refusals of competent people.
The state also has an interest in preventing suicide. It has been said that:
This state interest in protecting people from direct and purposeful self-destruction is motivated by, if not encompassed within, the state’s more basic interest in preserving life. Thus, it is questionable whether it is a distinct interest worthy of consideration.[35]
In Re Caulk[36] the state’s interests in preventing suicide and preserving life were seen as outweighing the right of a prisoner to refuse to eat. Joel Caulk, a convicted offender who had several charges pending, had stopped eating as a result of deciding that he no longer wished to live. The Supreme Court of New Hampshire authorised the medical treatment of Caulk on the grounds that his fasting was calculated for the singular purpose of causing his death. The interests of the state in maintaining discipline, security and order within its prison system,[37] when coupled with the state interests in preserving life and preventing suicide, outweighed Caulk’s right of self-determination.[38]
Similarly, when the treatment decision of a person adversely affects the ‘health, safety or security of others the right of self-determination must frequently give way.’[39] Traditionally, such cases have included the compulsory treatment of people suffering from infectious diseases.[40]
The state interest has also been applied to cases where the patient’s refusal would result in a child (or children) losing their mother or father.[41] In Application of the President and Directors of Georgetown College, Inc,[42] a mother of a seven month old infant was given a blood transfusion against her wishes because of her responsibility to the community to care for her infant. In Holmes v Silver Cross Hospital of Joliet, Illinois[43] it was indicated that a person’s status as a parent might justify the authorisation of a blood transfusion to save the parent’s life.[44]
This state interest also has been found to extend to preserving the life of a viable foetus.[45] In cases where pregnant women have refused treatment on religious grounds, some courts have declared the state interest to be strong enough to compel the woman to submit to treatment.[46]
However, the courts have not always found against the parent’s right to refuse treatment. In Re Osborn,[47] another person refused a life-sustaining transfusion because of religious beliefs. That person had two young children but it was still found that the public interest was not compelling enough to authorise the transfer. The court found that provision had been made for the spiritual and material needs of the children.
Similar findings were made in Stamford Hospital v Vega[48] where the Supreme Court of Connecticut overturned the decision of a judge to authorise non-consensual blood transfusions. The woman had haemorrhaged after giving birth to her first child. She had given advanced directives not to be treated. The hospital sought judicial intervention and her decision was overruled by the trial judge on the grounds of preserving life and protecting the newborn child from ‘abandonment’. The Supreme Court found the decision to be erroneous. There was no abandonment on the part of the mother as there was no immediate danger to the baby’s health.[49] Nor have pregnant mothers always been forced to submit to treatment. In Re AC,[50] the District Court of Appeals of Columbia found that a forced caesarean section on a terminally ill mother was wrongly approved by the courts. The Court of Appeals found against such approvals on the grounds that the patient’s wishes, once they are ascertained, must be followed in ‘virtually all cases’[51] unless there are ‘truly extraordinary or compelling reasons to override them.’[52]
The ethical integrity of the medical profession has also been found to have some weight as a public interest. In Application of the President and Directors of Georgetown College, Inc[53] and in United States v George,[54] orders were granted for a blood transfusion which had been refused on religious grounds. In both cases, mention was made of the importance of respecting a doctor’s conscience and oath. The patients, once they had placed themselves into medical care, had been found to have submitted themselves to the doctors’ authority in that they could not dictate the limits of the treatments provided. In each case, the patient was said to be able to refuse treatment but ‘not demand mistreatment.’[55]
In later cases, the integrity of the medical profession has not been found to be particularly threatened by the right to self-determination, even in cases where people refuse life-sustaining treatment.[56] The prevailing medical–ethical standards have been found to have had a lessening impact on this interest.[57] The duties of doctors in the present day surpass the simple duty to cure and include palliative treatments which are not curative but have the purpose of easing the passage of life.
Once it is accepted that a patient can decide to die by refusing medical treatment, one should then ask the question as to how that decision might be communicated. Typically, most patients express their wishes either orally to their doctors during consultation or in writing when filling out consent forms. But the right to refuse treatment is not limited to these sorts of decisions. It is also possible to make a decision to refuse treatment in anticipation of future events.
Such decisions are merely a logical extension of the right to self-determination.[58] Without this logical extension, the right to self-determination would become a nonsense. A doctor would only have to wait for a patient to fall into unconsciousness before they could proceed with treatments which had been refused by the patient.
One of the leading cases concerning anticipatory decision-making is Malette’s Case.[59] In this case, a doctor was held liable for battery when he ignored the written advanced directive of a Jehovah’s Witness to refuse blood products. The refusal was in the form of a card which set out the woman’s beliefs as a Jehovah’s Witness and her express refusal to be administered any blood products under any circumstances. Robins JA stated: ‘A doctor is not free to disregard a patient’s advance instructions any more than he would be free to disregard instructions given at the time of the emergency.’[60] Further, his Honour said:
[H]er refusal to accept his advice or her unwillingness to discuss or consider the subject would not relieve him of his obligation to follow her instructions. ... Her decision in this instance would be operative after she lapsed into unconsciousness, and the doctor’s conduct would be unauthorized.[61]
It was argued in Malette’s Case that, as the patient had not had the opportunity to consider the advice of a doctor in the circumstances of the emergency, the card was of no effect as it reflected an uninformed decision. This argument was soundly rejected. The card ‘imposed a valid restriction on the emergency treatment that could be provided’.[62] The instructions contained on the card were said to be a practical way of communicating the patient’s wishes to abstain from blood in any circumstances.[63]
The finding in Malette’s Case was repeated in a different set of circumstances in Fleming v Reid.[64] This case concerned the constitutional validity of mental health legislation. Two patients refused future courses of neuroleptic drugs during periods when they were competent. At later times when they were experiencing episodes of mental illness a review board was legislatively empowered to override their competent anticipatory decisions. The Ontario Court of Appeal upheld the anticipatory decisions and found that the legislation offended the Canadian Charter of Rights and Freedoms.[65]
During the course of the judgment Robins JA stated that:
A patient, in anticipation of circumstances wherein he or she may be unconscious or otherwise incapacitated and thus unable to contemporaneously express his or her wishes about a particular form of medical treatment, may specify in advance his or her refusal to consent to the proposed treatment. A doctor is not free to disregard advance instructions, even in an emergency.[66]
The English courts have also upheld the right to make anticipatory decisions. The English Court of Appeal in Re T (An Adult) (Consent to Medical Treatment)[67] held that doctors had no right to override anticipatory refusals when the refusal had been made by a competent person who intended it to cover the circumstances that had arisen.[68]
The case concerned the decision of a woman (whose mother was a Jehovah’s Witness) to refuse blood products after she was injured in a car accident. The court found that the woman’s mother had exerted undue pressure on the woman to make her refuse the treatment prior to her becoming incapacitated. The woman’s decision was therefore invalid and treatment could be provided by the doctors according to the patient’s best interests.
The test for the validity of advanced directives was said by Lord Donaldson MR to rely on the true scope and basis of the decision.[69] Where the present condition of the patient falls outside the anticipatory refusal the decision will not be held valid. Similarly, if the decision was made on a basis which has been falsified then the refusal should not be honoured. Finally, if the patient has been subject to undue influence the decision will be void and treatment may be provided. However, once a decision is found to be valid, any doctors who ignore it would ‘do so at their peril’.[70]
In Airedale NHS Trust v Bland,[71] two members of the House of Lords echoed the findings of the Court of Appeal in Re T. In this case, the House was being asked to determine the legality of the withdrawal of life support from a patient in a persistent vegetative state. Lord Keith and Lord Goff both recognised the validity of clear instructions given by people of sound mind, in anticipation of their incapacity, to consent to or refuse types of treatment.[72]
Lord Keith said that the principle of self-determination
extends to the situation where the person, in anticipation of his, through one cause or another, entering into a condition such as PVS [persistent vegetative state], gives clear instructions that in such an event he is not to be given medical care, including artificial feeding, designed to keep him alive.[73]
Lord Goff agreed, saying that
the same principle [of self-determination] applies where the patient’s refusal to give his consent has been expressed at an earlier date, before he became unconscious or otherwise incapable of communicating it; though in such circumstances especial care may be necessary to ensure that the prior refusal of consent is still properly to be regarded as applicable in the circumstances which have subsequently occurred.[74]
The other Lords did not discuss the issue as it was clear that the patient in the case had never made an advanced directive.[75]
Further support for the power to make an advanced directive can be found in the case of Re C (Adult: Refusal of Treatment) where Thorpe J said that ‘it is also common ground that a refusal can take the form of a declaration of intention never to consent in the future or never to consent to some future circumstances.’[76]
In the United States, anticipatory decisions have been held to be valid on several occasions.[77] For example, in Re Conroy[78] the Supreme Court of New Jersey recognised the validity of a ‘purely subjective test’ to determine whether to withdraw artificial feeding from a patient in a persistent vegetative state. This test seeks to establish, under a clear and convincing standard (as discussed below in Part VII), whether the patient had decided to refuse or to consent to different treatment options. Evidence that might satisfy the test could be in the form of written documents, oral directives, conversations, durable powers of attorney or the appointment of a proxy decision-maker who is authorised to make certain decisions pertaining to the treatment of the patient. Evidence as to the patient’s religious beliefs or strongly held opinions will also be relevant, as will any consistent patterns of conduct in relation to decisions regarding medical care. The probative nature of such evidence will be determined by the remoteness, consistency and thoughtfulness of the statements or actions as well as the maturity of the person at the time of the statements or actions.[79]
There is, therefore, overwhelming overseas support for the right to refuse treatment by way of an advanced directive. But what of Australia?
There does not appear to be any major consideration of the right to refuse treatment in Australian law. While Australian common law includes recognition of the right of a patient to self-determination,[80] there has been no major judicial statement of the power to refuse treatment in Australia.[81] One is then left with the weight of overseas cases. It is submitted that, in the face of overwhelming support for the right in other common law jurisdictions, it should also be recognised here.
If we can then accept that the Australian common law includes a right to make an anticipatory decision, by what criteria can we assess the validity of an advanced directive? The case law from our sister jurisdictions suggests the following factors should be considered.
Obviously, the person must have been competent to make the decision at the time it was made. The starting point in cases where capacity is an issue is that ‘every adult is presumed to have ... capacity, but it is a presumption which can be rebutted.’[82] The test for capacity rests on the question of whether the patient understood the nature and purpose of the treatment when they made the decision to refuse it.[83]
One of the leading cases for assessing the capacity of a patient to refuse treatment is the case of Re C (Adult: Refusal of Treatment).[84] This case concerned the question of whether a man who suffered from mental illness was still capable of refusing treatment to amputate a gangrenous limb. Thorpe J defined capacity as a sufficient understanding of ‘the nature, purpose and effects of the proffered [treatment].’[85] The mechanics of understanding appeared to be split into three stages:
As Mr C was able to complete these three steps he was found to have capacity.
In the United States similar approaches have been adopted.[87] In Re Schiller[88] the court stated the test for capacity as:
Does the patient have sufficient mind to reasonably understand the condition, the nature and effect of the proposed treatment, attendant risks in pursuing the treatment, and not pursuing the treatment?[89]
Similarly, in Re Quakenbush,[90] Muir AJSC found, in agreement with medical opinion, that a 72 year old man suffering from gangrene was competent
to make decisions, to understand the nature and extent of his physical condition, to understand the nature and extent of the operations, to understand the risks involved if he consents to the operation, and to understand the risks if he refuses the operation.[91]
More recently in Re Martin,[92] the Michigan Court of Appeals has stated that the test for competency is whether the person:
(1) has sufficient mind to reasonably understand the condition, (2) is capable of understanding the nature and effect of the treatment choices, (3) is aware of the consequences associated with those choices, and (4) is able to make an informed choice that is voluntary and not coerced.[93]
It should also be stressed that minors should not automatically be presumed incompetent. Under the findings of Gillick v West Norfolk and Wisbeck AHA,[94] minors are capable of making informed decisions when they can understand fully what is proposed.
A similar doctrine of the ‘mature minor’ exists in the United States. In Re EG[95] the Supreme Court of Illinois found that if a minor is mature enough to appreciate the consequences of a decision, and is mature enough to exercise the judgement of an adult, then the minor can refuse treatment.[96]
In Re Chad Swan[97] the Supreme Court of Maine upheld the anticipatory decision of a teenager to refuse life-sustaining treatments when he fell into a coma. Chad Swan had communicated his decision on two occasions. The first occasion was when he spoke to his mother about a much-publicised coma patient case.[98] The second occasion was when he spoke to his brother after visiting a friend who had become comatose after a car accident. On both occasions Chad had expressed a clear decision that he did not wish to be kept artificially alive should he fall into a coma. Eight days after the hospital visit Chad was himself rendered irreversibly comatose by a car accident. The court stated that:
The fact that Chad made these declarations as to medical treatment before he reached the age of 18 is at most a factor to be considered by the factfinder in assessing the seriousness and deliberativeness with which his declarations were made.[99]
There was therefore no automatic presumption of incompetence based on his minor status.[100]
The test of capacity should therefore be the initial hurdle in assessing the validity of an anticipatory decision. For patients like Mrs Q, there will usually be no question of the ability of such patients to make a competent anticipatory decision. However, should a question arise, the test of understanding should then be applied.
After capacity has been established, the tribunal of fact needs to determine whether the decision covers the circumstances that have arisen. The evidence must confirm the true scope and basis of the decision, that is, that the anticipatory decision was based on an informed opinion and was intended to apply to the circumstances which have arisen.[101]
As stated above, the weight given to evidence of anticipatory decision-making will be dependent on the remoteness, consistency and thoughtfulness of the statements or documents.[102] Evidence of a decision which consists of remote, general, spontaneous or casual comments will not support the claim of anticipatory decision-making.[103] However, evidence of cogent and serious decision-making which consists of written evidence or eye-witness accounts is usually strong enough to support the veracity of an anticipatory decision.[104] Evidence of oral directions can, by itself, support the finding of a valid anticipatory decision.[105]
The true scope and basis of the decision can often be hard to assess. For example, in Werth v Taylor[106] the decision of a woman to refuse blood was made only in contemplation of routine procedures for pregnancy. Her refusal was made in a jovial manner and evidence was tendered by the husband that the situation that arose was not contemplated by the patient. Hence the advanced directive did not bind the doctors.
Similarly, in Re Hughes,[107] Mrs Hughes, a Jehovah’s Witness, had haemorrhaged after a hysterectomy. Prior to the operation Mrs Hughes had filled out a consent form which detailed her refusal of blood products. However the part of the form which stated that the consequences of the decision had been explained to her by a physician was left blank.
The hospital sought the appointment of a temporary guardian to administer blood. The judge heard the evidence of her family members that she had refused blood products, but the judge found that the evidence was not clear enough to support a finding that a binding refusal had been made. A guardian was appointed, blood was given and Mrs Hughes recovered.
The Supreme Court of New Jersey upheld the trial judge’s decision. It found that the consent form needed to
contain an unequivocal statement that under any and all circumstances, blood is not to be used and an acknowledgement that the consequences of the refusal were fully supplied to the patient. The form should fully release the physician, all medical personnel and the hospital from liability should complications arise from failure to administer blood.[108]
Canadian authorities have similarly required clear evidence that a refusal was meant to apply in the current circumstances. In Re Van Wijngaarden v Tzalalis,[109] in a fact scenario which was almost identical to Malette’s Case,[110] the Ontario Court of Appeal felt bound to affirm the decision of a lower court to order blood transfusions for a card-carrying Jehovah’s Witness who was unconscious at the time. Unlike Malette’s Case, the patient was semi-conscious and sending conflicting messages about whether she wished to refuse blood.[111] Under those circumstances, and with the assurance of the doctors that blood would not be given unless absolutely necessary, the judge dismissed the motion to overturn the lower court’s order.
In light of the above cases, we can say that the Board in Q’s Case was not presented with evidence which satisfied the requirement that the true scope of the decision applied to Mrs Q. The finding of the Court of Appeal in Q’s Case is therefore, with respect, correct when it emphasises the limited scope of the decision as it was presented to the Board. However, serious questions then need to be asked as to the presentation of evidence to the Board which, on any reading of the material, was fundamentally flawed. This will be discussed below.
As Re T illustrates, the decision to refuse treatment must be made free from the undue influence of others. Undue influence may impair the decision-making process of the person and invalidate the decision. As discussed above, when determining whether the influence of a person over a patient was undue, one must inquire as to both the strength of will of the patient and the relationship of the patient with the persuader.[112]
This issue has been more commonly raised in the United States, but appears to be apposite given the problems encountered by the Board in their assessment of the facts in Q’s Case. The courts in the United States have required a higher standard of proof than the balance of probabilities in satisfying themselves of the veracity of anticipatory decisions to refuse treatment. The highest standard of evidence that can be required in civil proceedings in the United States is referred to as the ‘clear and convincing standard’ or the ‘clear, strong and cogent’ standard.[113]
In Australia, there is no midway standard of proof between the criminal standard and the civil standard.[114] However in cases concerning serious claims of professional misconduct or in civil cases involving claims of criminality, Australian courts are to have regard to the Briginshaw standard which allows the court to consider:
The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding.[115]
Weight is then accorded to these factors in the determination of the balance of probabilities.
Assessing the validity of an advanced directive is a very serious task. Most often it involves matters of life and death. The trier of fact is, in many circumstances, being asked to make a decision in an expedited forum where time limits may have prevented evidence from being properly prepared. There is, therefore, a real danger that a decision might be made erroneously. It is therefore submitted that the court should apply the Briginshaw test in its assessment of evidence concerning the above factors.
The above discussion has attempted to formulate a common law model of anticipatory decision-making as a way of examining Mrs Q’s right to refuse treatment. However the next step in analysing that right is to examine the role of legislation and its effects on the common law.
The Victorian Parliament passed the MTA in 1988. Section 1 of that Act states its purposes as:
(a) to clarify the law relating to the right of patients to refuse medical treatment;
(b) to establish a procedure for clearly indicating a decision to refuse medical treatment;
(c) to enable an agent to make decisions about medical treatment on behalf of an incompetent person.
Amongst its many provisions, the MTA creates a scheme for the creation and registration of a refusal of treatment certificate.[116]
Importantly, when creating these schemes, the MTA professedly does not aim to change any other rights that may exist at common law. Section 4 of the MTA states:
4. Other legal rights not affected
(1) This Act does not affect any right of a person under any other law to refuse medical treatment.[117]
It must therefore be said that the MTA does not affect the common law right to make advanced directives at all. It merely operates to offer a parallel scheme by which patients may make a decision to refuse a future course of treatment. This finding has implications for other states and territories where similar legislation has been introduced, such as South Australia,[118] the Northern Territory[119] and the Australian Capital Territory.[120]
There are also major implications for our understanding of Q’s Case. In particular, it raises the issue of whether Mrs Q’s initial advanced directive was valid. If we can accept the veracity of the proposed common law model, then this document might have been valid at common law with the consequence that the Board was without jurisdiction to appoint a guardian.[121]
One is therefore led to question the fact-finding processes of the Board: a crucial piece of evidence was not produced, a piece of evidence which might have completely altered the Board’s decision to award guardianship to Mr Q.
There are two main competing objectives in cases of administrative or judicial review of advanced directives. The first is the need to be fully aware of all the facts, which requires full and frank disclosure of all the evidence and that natural justice be given to the patient. The second is timeliness. These decisions occur under extreme time pressures. Both factors affect the decision-making of administrative bodies like the Board and courts at first instance.
The requirements of full and frank disclosure and procedural fairness were recently examined in St George’s Healthcare NHS Trust v S; ex parte S.[122] This case concerned a decision by a lower court to authorise a non-consensual caesarean section. The trial judge was not presented with any formal evidence and was misled by the hospital as to the patient’s condition. Moreover, no evidence was led as to the patient’s competency. Both the patient and her solicitors had not been informed of the hearing.
The Court of Appeal roundly criticised the hearing:
At the hearing of an urgent ex parte application, the judge is entitled to be given accurate answers to any questions which she thinks relevant. Furthermore nothing was done subsequent to the hearing to make sure that the proper formalities were complied with. Indeed technically no proceedings ever existed and no affidavit evidence from the hospital confirming what [Counsel for the hospital] had said to the judge was filed. These omissions should not recur.[123]
The Court of Appeal laid down guidelines for these cases in the future. It stated that the hearing of such matters must be inter partes. Patients, if competent, should be represented by their solicitors or court-appointed representatives and, if practicable, time should be given for these representatives to obtain instructions. If the patient is incompetent, a guardian ad litem should be appointed to represent the patient at the hearing.[124]
The Court of Appeal stated that full and frank disclosure of the facts was required in such cases to ensure that there would be no miscarriage of justice. Evidence which must be presented includes the reasons for the proposed treatment, the risks involved in the proposed treatment, whether any alternative treatment exists, the reason why the patient is refusing treatment, the capacity of the patient and evidence helpful in determining the patient’s best interests.[125]
Moreover, the court’s orders need to be recorded, approved and given to all parties.[126] If the practicalities prevent the presentation of evidence in affidavit form, such evidence needs to be prepared, served and filed as soon as possible after the emergency hearing.[127]
Requirements of full and frank disclosure do not mean that one ignores the practicalities of time in these cases. The Court of Appeal was at pains to point out that the guidelines were not court rules and could be avoided should compliance cause risk to the health of the patient.[128]
Of course the guidelines laid down by the Court of Appeal do not strictly apply to tribunals such as the Board. It is submitted that, even though such tribunals are not courts, similar procedural guidelines ought to apply. Indeed, it may be administratively easier for a tribunal to fully uncover the evidence of the patient’s wishes as such tribunals are not normally hamstrung by the adversarial process and may be freer to investigate the status of the patient’s wishes.
In the United States, similar considerations have arisen in relation to such hearings. For example, in Re Estate of Dorone,[129] Dorone was severely injured in a car accident and was rendered unconscious. The attending physicians decided that Dorone needed brain surgery to prevent death. Consent was sought from Dorone’s parents and they acceded to the doctor’s requests. However they refused to give permission for blood products to be given to Dorone. As Dorone lay on the operating table, the hospital sought a guardianship order to appoint the hospital administrator as a temporary guardian to consent to a transfusion. The parents were not present at any proceedings but evidence was presented of Dorone’s religious beliefs. The order was made over the telephone and blood products were administered.
Two days later Dorone suffered from a blood clot. The doctors once again wished to operate and thought it essential that blood products be administered. The parents again refused to consent. A second court order was made appointing the hospital administrator as temporary guardian.
The parents sought to have the decisions to appoint a temporary guardian overruled on the basis that the evidence of the parents, fiancé and his presiding minister should have been presented to the decision-maker. The Supreme Court of Pennsylvania felt that, while the evidence was not given, the thrust of that evidence was clearly in the mind of the judge when he made the orders.[130] Importantly, there was no evidence supporting a claim that the patient had refused blood products apart from the evidence of his religious beliefs. Perhaps most importantly, the judge was only required to hold a hearing which was feasible in the circumstances.[131]
Because of the brevity of Q’s Case, it is difficult to assess the decision of the Board in light of the above authorities, however some points can be raised.
It does not appear that Mrs Q was properly represented in the hearing before the Board. Mr Q and the hospital were represented at the hearing but it does not appear that there was any representation for Mrs Q.[132] Serious doubts then need to be raised as to the propriety of the proceedings given the guidelines in S’ Case.
Furthermore, there was a clear failure to provide full and frank disclosure of evidence. At the very least the Board should have been informed of the reasons for the refusal. Additionally, no reason has been proffered as to why the advanced directive was not also produced. The appointment of a representative may have avoided these failures to produce evidence of an advanced directive. As for the form of the presentation of evidence, the requirements for affidavit evidence would be inappropriate for a tribunal such as the Board given that it can operate outside the normal rules of evidence.[133]
Unfortunately none of these issues were discussed in Q’s Case. Instead the Court of Appeal limited its analysis to the questions of administrative law which arose from the decision of Beach J.
As stated above, the Court of Appeal preferred not to disturb the findings of Beach J that there was no matter of substantive importance to be tried. Although the sparse reasoning of Q’s Case prevents detailed analysis of this part of the decision, two points are worth noting.
The first is based on the facts which suggest (although do not confirm) that there was fraudulent conduct in the proceedings before the Board due to a failure to present all the evidence. The Court of Appeal did not outline the basis of the claim in the judgment but merely highlighted it as a claim.
Presumably, if evidence was withheld the decision must have been tainted by fraud and bad faith. In such cases judicial review is available, not only on administrative law grounds, but in the equitable jurisdiction to set aside judgments obtained by fraud.[134] As stated above, the potential for fraud in these emergency proceedings is rife and substantial injustice can be wrought upon unsuspecting patients. Yet despite this potential for tragedy the Court of Appeal did not elaborate on the issues.
Similarly, claims based on the Wednesbury principle of unreasonableness have been increasingly applied to decisions in the medical context in England.[135] An exploration of their place in Australian medical law would have been very helpful.[136] However the Court of Appeal, once again, did not elaborate on these issues.
It should be concluded that this entire episode represents a number of missed opportunities to clarify the scope of the right to die or refuse medical treatment in Victoria and Australia as a whole.
One should avoid overt criticism of the Board whose powers were exercised in an emergency situation and under extreme pressure. However, that should not excuse a decision that was made without all the evidence necessary to properly adjudicate the question of guardianship. The first issue, therefore, that should have been addressed by the Supreme Court was the proper procedure for emergency applications, followed by the issues of natural justice that are involved when making an order for guardianship.
The potential for misleading and deceptive information to be presented to a decision-maker is great. This potential is disturbing in two ways. The first is the way in which it might usurp valid advanced directives. The second is the way that it may pave the way for civil claims to be made against the decision-maker or the parties involved in the decision-making process. There are a growing number of cases arising in the United States of patients suing lawyers and hospital staff in civil conspiracy for obtaining court orders against their wishes.[137]
Furthermore, the dismissive treatment of Mrs Q’s claims for judicial review and the public policy arguments raised by the Court of Appeal to support the decision are disappointing. Yes, the order was exhausted by the time of appeal. Yes, the litigation would have brought Mrs Q into conflict with her husband[138] and would have involved a number of parties. And yes, the Board has now been replaced by another tribunal, however other jurisdictions have found that such factors are of less weight than the public interest in clarifying the scope and exercise of the right to die.[139] An opportunity was clearly missed in these circumstances to clarify the workings of the right to refuse medical treatment and its relationship with the MTA.
As we have seen, the MTA itself does everything possible to secure and protect the right to refuse treatment by preserving any existing rights. As shown above, these rights must exist at common law and do so in our sister jurisdictions. However there was no consideration by the Court of Appeal of these rights in the context of the case. Their Honours preferred to deal with the procedural discretion of the Administrative Law Act 1978 (Vic) rather than take the opportunity to consider the substantive issues concerning the scope of the right to die. This is, perhaps, a rare case of the legislature showing more care in clarifying fundamental human rights than the judiciary.
[*] B Econ (Macq), LLB (Hons) (Macq), Grad Dip Jur (Syd); Associate Lecturer, Faculty of Law, University of Western Sydney at Macarthur. My thanks to Nerida Stewart for her comments on the early drafts of this paper.
[1] [1998] VSCA 45 (Unreported, Winneke P, Brooking and Ormiston JJA, 17 September 1998) (‘Q’s Case’).
[2] Two Jehovah’s Witnesses, an 18 and a 26 year old, both died after refusing blood transfusions in Brisbane. See Barbara Adam, ‘Second Jehovah Witness Death After Refusing Transfusion’, Australian Associated Press, 22 December 1998 and ‘Doctors Seek Clarification on Blood Transfusions’, Australian Associated Press, 23 December 1998.
[3] I will use the terms interchangeably.
[4] Michael Magazanik, ‘It Saved Her Life – But Blood Transfusion Was Like Rape’, The Australian (Sydney), 24 November 1998, 1.
[5] The legislation allows a patient to refuse treatment for a current condition when that refusal is in accordance with a prescribed form: MTA s 5. See generally on the MTA: David Lanham, ‘The Right to Choose to Die with Dignity’ (1990) 14 Criminal Law Journal 410; David Lanham and Susan Woodford, ‘Refusal by Agents of Life-Sustaining Medical Treatment’ [1992] MelbULawRw 7; (1992) 18 Melbourne University Law Review 659; Danuta Mendelson, ‘Medico-Legal Aspects of the “Right to Die” Legislation in Australia’ [1993] MelbULawRw 5; (1993) 19 Melbourne University Law Review 112.
[6] Under s 32 of the Guardianship and Administration Board Act 1986 (Vic).
[7] Guardianship and Administration Board Act 1986 (Vic) s 20(3).
[8] Guardianship and Administration Board Act 1986 (Vic) s 33.
[9] Q’s Case [1998] VSCA 45 (Unreported, Winneke P, Brooking and Ormiston JJA, 17 September 1998) [17].
[10] Ibid [18].
[11] Ibid.
[12] [1947] EWCA Civ 1; [1948] 1 KB 223. This ground for review exists where a decision is made which is so irrational that no reasonable body could have come to make it.
[13] The Board has been replaced by the Victorian Civil and Administrative Tribunal which was established by the Victorian Civil and Administrative Tribunal Act 1998 (Vic). See also Guardianship and Administration Board Act 1986 (Vic) s 19.
[14] Michael Magazanik, ‘Blood Transfusion Like Being Raped’, The Australian (Sydney), 24 November 1998, 2.
[15] 105 NE 92, 93 (NY, 1914) (Cardozo J).
[16] Perna v Pirozzi, 457 A 2d 431 (NJ, 1983).
[17] Sidaway v Governors of the Bethlem Royal Hospital [1985] UKHL 1; [1985] AC 871; Re F (Sterilization: Mental Patient) [1989] 2 Fam 376; Airedale NHS Trust v Bland [1992] UKHL 5; [1993] AC 789; St George’s Healthcare NHS Trust v S; ex parte S [1998] 3 All ER 673.
[18] Nancy B v Hôtel-Dieu de Québec (1992) 86 DLR (4th) 385.
[19] Secretary of the Department of Health and Community Services v JWB and SMB [1992] HCA 15; (1992) 175 CLR 218 (‘Marion’s Case’). The right to refuse treatment was also touched upon in the earlier case of R v Johnston [1903] ArgusLawRp 6; (1903) 9 Argus LR 11. In this case a husband was charged with murder because he had failed to call for medical assistance when his wife became ill. The wife consistently refused treatment on the grounds of her faith (she belonged to the Christian Catholic Church of Zion, which looked upon medical assistance as being sinful) and died what seems to have been a rather long and painful death from blood loss. Simpson J found that the husband had not committed or omitted to act in any way that would make him guilty of murder, seemingly on the basis that the husband was under no duty to override the decision by the wife to refuse treatment.
[20] Fay Rozovsky, Consent to Treatment: A Practical Guide (2nd ed, 1984) 20.
[21] In Re C (Adult: Refusal of Treatment) [1994] 1 WLR 290, a patient was found capable of refusing the amputation of his gangrenous foot.
[22] See, eg, Nancy B v Hôtel-Dieu de Québec (1992) 86 DLR (4th) 385 where a patient, who required life support and whose mental capacity was unaffected by her condition, wished to refuse treatment. She sought an injunction against the hospital providing the treatment so that they would comply with her refusal. Dufour J, of the Quebec Superior Court, found that the woman had a right to refuse the treatment which was almost absolute, subject only to the corresponding right of others not to have their own health threatened.
[23] In Smith v Auckland Hospital Board [1965] NZLR 191, 219, Greeson J stated: ‘An individual patient must, in my view, always retain the right to decline operative investigation or treatment however unreasonable or foolish this may appear in the eyes of his medical advisers.’
[24] The overwhelming majority of cases come from the USA. See, eg, Lane v Candura, 376 NE 2d 1232 (Mass, 1978), where a 77 year old woman refused to consent to the amputation of her gangrenous leg. In Re Quakenbush, 383 A 2d 785 (NJ County Ct, 1978), a 72 year old man refused the amputation of both his legs which were gangrenous. In Bouvia v Superior Court (Glenchur), 225 Cal Rptr 297 (1986), the court upheld the right of a cerebral palsy sufferer to remove a naso-gastric tube that was keeping her alive.
[25] Satz v Perlmutter, 362 So 2d 160 (Fla 4th Dist Ct, 1978) (Lou Gherig’s disease sufferer removed respirator); Re Farrell, 529 A 2d 404 (NJ, 1987) (woman expressed desire to have respirator removed); Bartling v Superior Court (Glendale Adventist Hospital), 209 Cal Rptr 220 (1984) (competent patient can remove respirator); McKay v Bergstedt, 801 P 2d 617 (Nev, 1990) (quadriplegic expressed wish to have respirator removed).
[26] Sidaway v Governors of the Bethlem Royal Hospital [1985] UKHL 1; [1985] AC 871, 904–5.
[27] Re T (An Adult) (Consent to Medical Treatment) [1992] 2 Fam 458, 460 (Lord Donaldson MR). In the same case Butler-Sloss LJ stated: ‘A decision to refuse medical treatment by a patient capable of making the decision does not have to be sensible, rational or well considered’: at 474. Straughton LJ agreed: ‘An adult whose mental capacity is unimpaired has the right to decide for herself whether she will or will not receive medical or surgical treatment, even in circumstances where she is likely or even certain to die in the absence of treatment’: at 478. The principle is the same in the United States where it has been said that ‘[t]he law protects [the patient’s] right to make [his or] her decision to accept or reject treatment, whether that decision is wise or unwise’: Lane v Candura, 376 NE 2d 1232, 1236 (Mass, 1978).
[28] See, eg, Re Osborn, 294 A 2d 372 (DC, 1972); Re Brooks’ Estate, 205 NE 2d 435 (Ill, 1965); Re Melideo, 390 NYS 2d 523 (1976); Erickson v Dilgard, 252 NYS 2d 705 (1962); Re Milton, 505 NE 2d 255 (Ohio, 1987); Littletone v Poitrast, 1985 Mass LEXIS 1800; Public Health Trust of Dade County v Wons, 541 So 2d 96 (Fla, 1989).
[29] 390 NYS 2d 523 (1976).
[30] Similar decisions were made in Re Brooks’ Estate, 205 NE 2d 435 (Ill, 1965), where a woman without children was found to have validly refused life-sustaining treatments. For another example, see also Erickson v Dilgard, 252 NYS 2d 705 (1962).
[31] Re Conroy, 486 A 2d 1209 (NJ, 1985).
[32] Ibid.
[33] Ibid 1223.
[34] Liacos J in Superintendent of Belchertown v Saikewicz, 370 NE 2d 417, 426 (Mass, 1977) said:
The constitutional right to privacy ... is an expression of the sanctity of individual free choice and self-determination as fundamental constituents of life. The value of life as so perceived is lessened not by a decision to refuse treatment, but by the failure to allow a competent human being the right of choice.
[35] Re Conroy, 486 A 2d 1209, 1224 (NJ, 1985).
[36] 480 A 2d 93 (NH, 1984).
[37] See, eg, Commissioner of Correction v Myers, 399 NE 2d 452 (Mass, 1979), for more on the public interest in maintaining prison security and discipline that can override a competent refusal.
[38] A later Pennsylvania case found similarly: Department of Public Welfare v Kallinger, 580 A 2d 887 (Pa, 1990). An earlier English court also found similarly to Re Caulk in Leigh v Gladstone (1909) 26 TLR 139, where a prisoner was forcibly fed. Leigh v Gladstone was cited by Lee J in Schneidas v Corrective Services Commission (Unreported, Supreme Court of New South Wales, Lee J, 8 April 1983) 10, but in that case Lee J was reticent to find a common law justification for force-feeding and instead relied on statutory powers concerning medical treatment. Lee J did note that he would refuse to grant an injunction on the grounds that he did not wish to aid and abet the suicide of the prisoner: at 13. In contrast, an English court found recently that a prisoner’s right to self-determination outweighed society’s right in preventing suicide: Secretary of State for the Home Department v Robb (1995) 1 All ER 677.
[39] Re Conroy, 486 A 2d 1209, 1225 (NJ, 1985) (Schrieber J).
[40] See Jacobson v Massachusetts, [1905] USSC 38; 197 US 11 (1905), which recognised the enforceability of a smallpox vaccination law. See also the comments of Robins JA in Malette v Shulman (1990) 67 DLR (4th) 321, 333 (‘Malette’s Case’) where it was stated that ‘the state may in certain cases require that citizens submit to medical procedures in order to eliminate a health threat to the community’.
[41] Application of President & Directors of Georgetown College, Inc[1964] USCADC 264; , 331 F 2d 1000 (DC Cir, 1964); United States v George, 239 F Supp 752 (Conn US Dist Ct, 1965); Holmes v Silver Cross Hospital, 340 F Supp 125 (Ill US Dist Ct, 1972). See also Kristin Lomond, ‘Adult Patient’s Right to Refuse Treatment for Religious Reasons: The Limitations Imposed by Parenthood’ (1993) 31 University of Louisville Journal of Family Law 665.
[42] [1964] USCADC 264; 331 F 2d 1000 (DC Cir, 1964). Similar decisions can be found in Re Powell v Columbian Presbyterian Medical Center, 267 NYS 2d 450 (1965) (mother of six children forceably transfused) and Re Winthrop University Hospital v Hess, 490 NYS 2d 996 (1985) (advanced directives against blood products overruled as the mother should not be allowed to ‘abandon’ a child).
[43] 340 F Supp 125 (Ill US Dist Ct, 1972).
[44] Ibid 130.
[45] Crouse Irving Memorial Hospital v Paddock, 485 NYS 2d 443 (1985); Application of Jamaica Hospital, 491 NYS 2d 898 (1985); Mercy Hospital v Jackson, 489 A 2d 1130 (Md, 1985); Re Madyun, 573 A 2d 1259 (DC, 1990). See also Les Haberfield, ‘Pregnant Women: Judicial Intervention and the Right of Pregnant Women to Refuse Medical Treatment’ (1995) 2 James Cook University Law Review 1.
[46] There is also English authority: Re S (Adult: Refusal of Medical Treatment) [1992] 3 WLR 806. However the English courts now appear to have changed their tack: St George’s Healthcare NHS Trust v S; ex parte S [1998] 3 All ER 673. See below Part IX.
[47] 294 A 2d 372 (DC, 1972). See also Re Dubreuil, 629 So 2d 819 (Fla, 1993); Norwood Hospital v Munoz, 564 NE 2d 1017 (Mass, 1991); Fosmire v Nicoleau, 551 NE 2d 77 (NY, 1990); Public Health Trust of Dade County v Wons, 541 So 2d 96 (Fla, 1989); St Mary’s Hospital v Ramsey, 465 So 2d 666 (Fla App 4 Dist, 1985).
[48] 674 A 2d 821 (Conn, 1996).
[49] Ibid 823.
[50] 573 A 2d 1235 (DC App, 1990).
[51] Ibid 1249. See also Re Baby Boy Doe, 632 NE 2d 326 (Ill App 1st Dist, 1994) and Re Fetus Brown, 689 NE 2d 397 (Ill App 1st Dist, 1997) for decisions upholding the right to refuse treatment when pregnant.
[52] Re AC, 573 A 2d 1235, 1247 (DC App, 1990).
[53] [1964] USCADC 264; 331 F 2d 1000 (DC Cir, 1964), certiorari denied 377 US 978.
[54] 239 F Supp 752 (Conn US Dist Ct, 1965).
[55] Ibid 754.
[56] Superintendent of Belchertown v Saikewicz, 370 NE 2d 417, 426–7 (Mass, 1977); Re Conroy, 486 A 2d 1209, 1224–5 (NJ, 1985); Satz v Perlmutter, 362 So 2d 160, 163–4 (Fla 4th Dist Ct, 1978). In Malette’s Case, (1990) 67 DLR (4th) 321, 334 the state interest in preserving the ethical integrity of the medical profession was said to always be subject to the right of self-determination.
[57] Superintendent of Belchertown v Saikewicz, 370 NE 2d 417, 426 (Mass, 1977); Re Conroy, 486 A 2d 1209, 1224–5 (NJ, 1985).
[58] Airedale NHS Trust v Bland [1992] UKHL 5; [1993] AC 789, 864 (Lord Goff).
[60] Ibid 330.
[61] Ibid.
[62] Ibid 332.
[63] Ibid 335.
[64] (1991) 82 DLR (4th) 298. For similar cases in the USA, see, eg, Osgood v District of Columbia, 567 F Supp 1026 (US Dist Ct, 1983); United States v Charters, 829 F 2d 479 (4th Cir, 1987); Rockland Psychiatric Center v Virginia G, 634 NYS 2d 648 (1995); Rivers v Katz, 495 NE 2d 337 (NY, 1986); Re Boyd, 403 A 2d 744 (DC App Ct, 1979).
[65] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act 1982, being Schedule B to the Canada Act 1982 (UK) c 11.
[66] Fleming v Reid (1991) 82 DLR (4th) 298, 310.
[67] [1992] 2 Fam 458 (‘Re T’).
[68] Ibid 472.
[69] Ibid 473. Their Lordships followed Malette’s Case (1990) 67 DLR (4th) 321.
[70] Re T [1992] 2 Fam 458, 474.
[71] [1992] UKHL 5; [1993] AC 789.
[72] Ibid. See also the comments of Bingham MR in the Court of Appeal confirming the right of the patient to make an anticipatory decision: at 809.
[73] Ibid 857.
[74] Ibid 864.
[75] Ibid 894–5.
[76] [1994] 1 WLR 290, 294–5.
[77] See, eg, Application of Linda E Hall Hospital, 455 NYS 2d 706 (1982); Re Peter by Johanning, 529 A 2d 419 (NJ, 1987); Re Hughes, 611 A 2d 1148 (NJ Super Ad, 1992); Saunders v State, 492 NYS 2d 510 (1985).
[78] 486 A 2d 1209 (NJ, 1985).
[79] As per the decisions in Re Conroy, 486 A 2d 1209, 1230 (1985); Re Jobes, 529 A 2d 434, 443 (NJ, 1987) and Re Welfare of Colyer, 660 P 2d 738, 748 (Wash, 1983).
[80] See, eg, Marion’s Case [1992] HCA 15; (1992) 175 CLR 218, 232–5.
[81] John Blackwood, ‘“I Would Rather Die with Two Feet Than Live with One”; The Status and Legality of Advance Directives in Australia’ [1997] UQLawJl 6; (1997) 19 University of Queensland Law Journal 270. There has been some judicial discussion of this matter. See, eg, Re Kinney (Unreported, Supreme Court of Victoria, Fullagar J, 23 December 1988). Fullagar J refused to grant an injunction preventing the treatment of a man who had unsuccessfully attempted suicide. The man (who was terminally ill with leukaemia) had been accused of murder and had purposefully overdosed on drugs. As a result of the overdose he had fallen into a coma. The doctors inserted a tube down his throat to continue the man’s respiration, but the insertion caused bleeding. The doctors wished to operate to arrest the bleeding. The wife of the man sought an injunction restraining the doctors from operating. She argued that, because he was dying from a terminal illness and because he had expressed his desire to die and had refused treatment, he should be allowed to pass away. There was no documentary evidence of the patient’s refusal of treatment for his leukaemia although it was alleged that the man had written a suicide note (which was not produced). Fullagar J found that the granting of an injunction would effectively mean that the court was assisting the suicide of the person and this his Honour would not agree to. It would seem, then, that the public interest against suicide was the basis of his decision.
[82] Re T [1992] 2 Fam 458, 470 (Lord Donaldson MR). See also Lane v Candura, 376 NE 2d 1232, 1235 (Mass, 1978) for the United States version of this principle: ‘A person is presumed to be competent unless shown by the evidence not to be competent.’
[83] In Re F (Sterilization: Mental Patient) [1989] 2 Fam 376, 419–20, Lord Brandon said that incapacity arises where an adult cannot understand the nature or purpose of an operation or other treatment. See also Gillick v West Norfolk and Wisbech AHA [1985] UKHL 7; [1986] AC 112.
[85] Ibid 295.
[86] The test in Re C, 573 A 2d 1235 (DC App, 1990) was accepted by Thorpe J in Secretary of State for the Home Department v Robb [1995] 1 All ER 677, 681.
[87] In addition to the cases discussed below, see also Re Conroy, 486 A 2d 1209, 1241 (NJ, 1985); Re O’Brien, 517 NYS 346 (1986); Re Farrell, 529 A 2d 404 (NJ, 1987); Re AC, 573 A 2d 1235, 1244 (DC App Ct, 1990).
[88] 372 A 2d 360 (NJ, 1977).
[89] Ibid 367. See also State Department of Human Services v C Northern, 563 SW 2d 197 (Tenn, 1978).
[90] 383 A 2d 785 (NJ County Ct, 1978).
[91] Ibid 788. Followed in Re Clark, 510 A 2d 136 (NJ Super Ch, 1986).
[92] 504 NW 2d 917 (Mich App, 1993).
[93] Ibid 924.
[94] [1985] UKHL 7; [1986] AC 112.
[95] 549 NE 2d 322 (Ill, 1989)
[96] Ibid 327–8.
[97] 569 A 2d 1202 (Me, 1990).
[98] That of Re Gardner, 534 A 2d 947 (Me, 1987).
[99] Re Chad Swan, 569 A 2d 1202, 1205 (Me, 1990).
[100] Cf Re Long Island Jewish Medical Center, 557 NYS 2d 239 (1990) where a teenager six weeks away from turning 18 was found not to be a mature minor capable of refusing blood products on the basis of his Jehovah’s Witness beliefs. See also OG v Baum, 790 SW 2d 839 (Tex App 1st Dist, 1990) where the Court of Appeals of Texas refused to follow Re EG, 549 NE 2d 322 (Ill, 1989) and overruled the decision of a 16 year old girl to refuse blood. In England, the court’s inherent jurisdiction has also been used to overrule the decision of a competent minor, on the basis that treatment is in the child’s best interests: Re E (A Minor) [1993] 1 Fam 386; South Glamorgan County Council v B and W (1992) 11 BMLR 162; Re W (A Minor)(Medical Treatment) (1992) 9 BMLR 22.
[101] Re T [1992] 2 Fam 458, 473 (Lord Donaldson). See also Loane Skene, ‘When Can Doctors Treat Patients Who Cannot or Will Not Consent?’ [1997] MonashULawRw 6; (1997) 23 Monash University Law Review 77.
[102] As per the decisions in Re Conroy, 486 A 2d 1209, 1230 (NJ, 1985); Re Jobes, 529 A 2d 434, 443 (NJ, 1987) and Re Welfare of Colyer, 660 P 2d 738, 748 (Wash, 1983).
[103] Re Jobes, 529 A 2d 434, 443 (NJ, 1987).
[104] See, eg, Re Peter, 529 A 2d 419 (NJ, 1987) where evidence was led of a medical power of attorney and a verbal direction to refuse treatment which was attested by nine reliable witnesses.
[105] See, eg, Re Chad Swan, 569 A 2d 1202 (Me, 1990); Leach v Akron General Medical Center, 426 NE 2d 809 (Ohio Comm Pl, 1980); Re Eichner, 420 NE 2d 64 (NY, 1981); Re Martin, 504 NW 2d 917, 923 (Mich App, 1993).
[106] 475 NW 2d 426 (Mich App, 1991).
[107] 611 A 2d 1148 (NJ Super Ad, 1992).
[108] Ibid 1153.
[109] (1992) 11 OR (3d) 779; 1992 Ont CA LEXIS 278.
[110] (1990) 67 DLR (4th) 321.
[111] (1992) 11 OR (3d) 779; 1992 Ont CA LEXIS 278, 6.
[112] See Re T [1992] 2 Fam 458.
[113] As per all the American decisions dealing with the removal or withdrawal of life-sustaining treatments. See especially Cruzan v Director, Missouri Health Department, [1990] USSC 122; 497 US 261 (1990).
[114] J D Heydon, Cross on Evidence (5th ed, 1996) [9085].
[115] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 362 (Dixon J).
[116] Significantly, the MTA also creates a scheme for the creation of enduring powers of attorney, which allows a person to appoint someone to be a decision-maker for them should they become incompetent: s 1(c).
[117] An identical provision exists in the Medical Treatment Act 1994 (ACT) s 5 and a similar provision exists in the Natural Death Act 1988 (NT) s 5. No such provision exists in the Consent to Medical Treatment and Palliative Care Act 1995 (SA).
[118] Consent to Treatment and Palliative Care Act 1995 (SA). This Act does not, however, explicitly preserve the common law right to refuse treatment.
[119] Natural Death Act 1988 (NT). This Act has more limited operation. The sections dealing with refusal of treatment apply only to the refusal of ‘extraordinary measures’ which are defined in s 3 to be ‘medical or surgical measures that prolong life, or are intended to prolong life, by supplanting or maintaining the operation of bodily functions that are temporarily or permanently incapable of independent operation.’
[120] Medical Treatment Act 1994 (ACT). The Act contains nearly identical provisions to the Victorian legislation.
[121] A second issue worth canvassing here relates to the enduring power of attorney. Was Mrs Q empowered by some other law, other than the MTA, to execute this document? At common law a power of attorney expires when the donor becomes incompetent. There is, therefore, no common law power to create an enduring medical power of attorney. Was there, however, a statutory power to create an enduring power of attorney which might, in turn, be preserved by s 4 of the MTA? The Instruments Act 1958 (Vic) ss 114–18 provides a mechanism for the creation of enduring powers of attorney, however that mechanism does not give the donee the right to act as attorney for the purposes of making medical decisions: s 117(5). There was therefore no alternative legal basis for creating an enduring power of attorney for medical decisions. The Board was thus right to ignore Mrs Q’s enduring power of attorney due to its failure to comply with the MTA.
[122] [1998] 3 All ER 673 (‘S’ Case’).
[123] Ibid 683 (Judge LJ).
[124] Ibid 704.
[125] Ibid.
[126] Ibid.
[127] Ibid.
[128] Ibid.
[129] 534 A 2d 452 (Pa, 1987).
[130] Ibid 455.
[131] Ibid.
[132] Q’s Case [1998] VSCA 45 (Unreported, Winneke P, Brooking and Ormiston JJA, 17 September 1998) [3].
[133] For example, the Victorian Civil and Administrative Tribunal can choose not to be bound by the ordinary rules of evidence: Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 98(1)(b).
[134] Wentworth v Rogers [No 5] (1986) 6 NSWLR 534; Monroe Schneider Associates (Inc) v No 1 Raberem Pty Ltd [1992] FCA 367; (1992) 37 FCR 234. The equitable jurisdiction can set aside judgments of tribunals: Rahisi Pty Ltd v Banzato (Unreported, Supreme Court of New South Wales, Brownie J, 14 February 1996).
[135] For the development of its application, see, eg, R v Derbyshire HA; ex parte Fisher [1997] 8 Med LR 327; R v Central Birmingham Health Authority; ex parte Walker (1987) 3 BMLR 32; R v Cambridge Health Authority; ex parte B (1995) EWCA Civ 49; [1995] 1 WLR 898.
[136] See generally Cameron Stewart, ‘Judicial Review of Medical Treatment Decisions’ (Paper presented at Costs of Health Conference, Australian Institute of Health, Law and Ethics, Melbourne, October 1998).
[137] However these cases have proved, for varying reasons, to be unsuccessful at this stage. See Hamilton v McAuliffe, 353 A 2d 634 (Md, 1976), where a recipient of an unwanted blood transfusion sought a declaration (unsuccessfully) that a judge had violated his human rights by ordering a blood transfusion over his objections. The matter was struck out on the grounds of there being no justiciable controversy. See also McKenzie v Doctors’ Hospital of Hollywood Inc, 765 F Supp 1504 (SD, 1991), where a conspiracy claim failed because of a lack of evidence, and Novak v Cobb County Kennestone Hospital Authority, [1996] USCA11 330; 74 F 3d 1173 (11th Cir, 1996) where hospital staff members and their lawyers were sued for conspiracy to breach the rights of a 17 year old car accident victim whose refusal of blood products had been judicially overruled. The plaintiff and his mother sought nearly US$20 million in damages. Once again there was no worthy claim and the process was struck out.
[138] Which appears to assume, rather unrealistically, that this has not already happened.
[139] See, eg, numerous cases from the United States where the issue has been moot because of the death of the patient, but the courts have seen it as necessary to provide guidance in the public interest: Re Conroy, 486 A 2d 1209 (NJ, 1985); Re Guardianship of Hamlin, 689 P 2d 1372 (Wash, 1984); Rasmussen by Mitchell v Fleming, 741 P 2d 674 (Ariz, 1987). In the particular area of blood transfusions see also Stamford Hospital v Vega, 674 A 2d 821 (Conn, 1996); Re Hughes, 611 A 2d 1148 (NJ Super Ad, 1992); Norwood Hospital v Munoz, 564 NE 2d 1017 (Mass, 1991). However some courts have considered the claims to be moot, based on similar reasoning as used by the Court of Appeal in Q’s Case: Hamilton v McAuliffe, 353 A 2d 634 (Md App Ct, 1976); Novak v Cobb County Kennestone Hospital Authority, [1996] USCA11 330; 74 F 3d 1173 (11th Cir, 1996); Mercy Hospital Inc v Jackson, 510 A 2d 562 (Md, 1986).
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