Isaac Messiha (by his tutor Magdy Messiha) v South East Health [2004] NSWSC 1061 (11 November 2004)

Last Updated: 17 November 2004

NEW SOUTH WALES SUPREME COURT

CITATION: Isaac Messiha (by his tutor Magdy Messiha) v South East Health [2004] NSWSC 1061



CURRENT JURISDICTION:

FILE NUMBER(S): 13521/2004

HEARING DATE{S): 01/11/2004

JUDGMENT DATE: 11/11/2004

PARTIES:
Isaac Messiha (by his tutor Magdy Messiha) v South East Health

JUDGMENT OF: Howie J

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:
G. Segal - Plaintiff
T. Lynch - Defendant

SOLICITORS:
Maurice Blackburn Cashman - Plaintiff
I.V. Knight, Crown Solicitor - Defendant


CATCHWORDS:
Courts/Jurisdictions - Supreme Court parens patriae jurisdiction - Application for order restraining hospital from terminating current treatment of patient

ACTS CITED:


DECISION:
The summons is dismissed.


JUDGMENT:


IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HOWIE J

THURSDAY 11 NOVEMBER 2004

13521/2004 ISAAC MESSIHA (BY HIS TUTOR MAGDY
MESSIHA) v SOUTH EAST HEALTH

JUDGMENT

1 His Honour: On 17 October 2004 Mr Messiha, the patient, was admitted to the Intensive Care Unit of St George Hospital. He had suffered an asystolic cardiac arrest: that is his heart had completely stopped beating depriving his body, including his brain, of the supply of oxygen. As a result, since his admission, the patient has been unconscious and apparently in a deep coma. He has been under the direct care of Dr Jacques, the Director of the Unit and who is an employee of the defendant.

2 Dr Jacques has determined that the current treatment regime of the patient should cease and that he should be removed from the Unit and placed under palliative care. She accepts that withdrawing treatment in the Unit will have the effect of reducing his life expectancy from possibly weeks to possibly days. The application before the Court is brought, in effect, by members of the patient’s family in order to restrain Dr Jacques and other medical staff at the hospital from altering the patient’s treatment. The family believes that, contrary to medical opinion, there are some slight signs of improvement in the patient’s condition and that, if the current treatment regime continued, thus prolonging his life by even a short period of time, the patient’s condition might improve.

3 The application to this Court is based upon its parens patriae jurisdiction to act in the welfare of a person who is unable to care for himself or make his own decisions as to what is in his own best interest. Such a jurisdiction was recognised in relation to the treatment of a critically ill patient by O’Keefe J in Northridge v Central Sydney Area Health Service [2000] NSWSC 1241; (2000) 50 NSWLR 549. In relation to this power, O'Keefe J stated at [24]

There is undoubted jurisdiction in the Supreme Court of New South Wales to act to protect the right of an unconscious person to receive ordinary reasonable and appropriate (as opposed to extraordinary, excessively burdensome, intrusive or futile) medical treatment, sustenance and support. In this day and age ordinary reasonable and appropriate treatment, for a person of the age and condition of Mr Thompson, would extend to the administration of antibiotics and appropriate feeding. The Court also has jurisdiction to prevent the withdrawal of such treatment, support and sustenance where the withdrawal may put in jeopardy the life, good health or welfare of such unconscious individual. What constitutes appropriate medical treatment in a given case is a medical matter in the first instance. However, where there is doubt or serious dispute in this regard the court has the power to act to protect the life and welfare of the unconscious person.

I shall return to this statement of the law shortly, however I am prepared to act upon the basis that such a broad jurisdiction does exist although it is to be exercised cautiously: Northridge at [22].

4 The patient is aged 75 years. He collapsed at home and it is estimated that his brain was without oxygen for at least 25 minutes before ambulance officers arrived and performed CPR upon him. He is currently in a deep coma as a result of the injuries inflicted to the brain by the absence of oxygen. When he was admitted to hospital on 17 October last, it was Dr Jacques’s opinion that he had suffered severe brain damage both by reason of the period during which the brain was without oxygen and the apparent clinical signs evidencing the extent of the injury. There is nothing to suggest that this diagnosis was unsound.

5 The patient, who is also suffering from severe lung disease, had, about three months before the present admission, been admitted to hospital as a result of suffering a cardiac arrest. He had also been the subject of cardiac surgery about 10 years earlier. Having regard to this history, his age and his existing lung disease, Dr Jacques formed the opinion on his admission that the patient had a very poor prognosis. There is nothing to suggest that this opinion is unsound.

6 The patient’s wife and children have been in attendance upon him during his period in hospital and they have had discussions with Dr Jacques and hospital staff as to what treatment the patient should receive. On 18 October, after examining the patient and determining that his condition had not improved, Dr Jacques spoke to the patient’s wife and members of his family and agreed to allow them to obtain another opinion about the prognosis of the patient. That day Dr Prior examined the patient and formed the view that:

“..there is no realistic possibility of meaningful recovery of cerebral function.....I see no useful therapeutic measures indicated”.

7 On 19 October Dr Jacques made a further examination of the patient and found that his condition remained the same: he was in a deep coma with little response to external stimuli. She formed the view that he suffered from severe hypoxic brain damage. Dr Jacques again spoke to the family about what further course of treatment, if any, should be prescribed for the patient. She indicated that the patient was not improving and said:

There are two possible paths of care. If he improves and if it is consistent with his wishes then we will give him a tracheostomy and begin weaning him off the ventilator. If his condition is the same or worse then we will have to look at removing the ventilator and focussing on comfort care

8 On 20 October Dr Jacques examined the patient and concluded that his condition had deteriorated: his heart and breathing rates were decreasing and some of his brain stem reflexes were absent or abnormal. She formed the view that the continued use of a ventilator and other intensive treatment was “very unlikely to lead to or permit any recovery of, or improvement in, his condition”. Dr Jacques again spoke to members of the patient’s family, in the presence of the family doctor and a priest, and raised the prospect of removing the ventilator and changing the nature of the treatment to “comfort care”.

9 During this conversation there was a reference made by Dr Jacques to the availability of the Unit’s resources for other patients who were awaiting treatment in the Unit. This was unfortunate because it led to the possibility that the family believed that the decision concerning the future treatment of the patient was, in part at least, being determined by reference to what should, arguably, have been an irrelevant matter, at least so far as the welfare of the patient was concerned. If the availability of places in the Unit was raised as a matter to be taken into account by Dr Jacques or other hospital staff in determining the future treatment of the patient, it was insensitive to the feelings of the family members and might have been taken as a form of pressure on the family to agree with the hospital’s decision.

10 It was put to Dr Jacques in evidence before me that her decision as to the future treatment of the patient was based, at least in part, upon the availability of beds in the Unit and the needs of other patients, but she denied it. She said that she only raised this matter because Dr Ng, the family’s medical practitioner, had himself alerted to the needs of the Unit when speaking to the family. Dr Jacques maintained that her view as to the appropriate treatment for the patient at that time was based upon her opinion that the current regime was unlikely to result in any improvement in that patient’s condition but yet exposed him to the risk of infection and further complications.

11 But whatever the situation was on 20 October, the decision to terminate treatment in the Unit was not made on that day and Dr Jacques and other medical staff continued to treat and examine the patient within the Unit as they had done before that date. An EEG scan taken of the patient’s brain on 21 October suggested there was no cortical activity. A further examination of the patient on that day led to confirm Dr Jacques in her view that the likely outcome for the patient was death even if treatment in the Unit were continued.

12 On 27 October Professor Lance, a neurologist not attached to the hospital, conducted an examination of the patient in the presence and at the request of members of the patient’s family. He gave evidence before me at the behest of the family. It is clear that there is no real difference in the opinion he expresses of the prospects of recovery and that which has been expressed by Dr Jacques. Professor Lance is of the view that there was no real prospect of a significant recovery of the patient and that the continued treatment in the Unit could not be justified on purely medical grounds. In particular Professor Lance found nothing in his examination or in the hospital records to support the evidence of members of the family and a friend of the patient that they have observed purposive eye movements by the patient in recognition of those speaking to him and what was said.

13 There is unchallenged evidence before me that members of the patient’s family and a close friend have witnessed, what they believe to have been, eye movements of the patient that were responsive to words spoken to him. For example, his son has given evidence in an affidavit that his father apparently focused on him when he approached the side of his bed. The patient also appeared to look straight ahead when his son told him that there was a clock in front of him. A close friend gives evidence of the patient on one occasion opening his eyes and looking at her when she asked him to do so and on another occasion looking directly at her when she spoke to him.

14 However, such conduct appears to be inconsistent with the medical findings and tests conducted both by hospital staff and Professor Lance. This is not, of course, to suggest that the witnesses are being untruthful and they clearly believe that what they have seen indicates that the patient is making some recovery from the deep coma state that he has been under since his admission into hospital. The difficulty is that there is nothing objectively to support that any improvement has taken place, but rather, in my opinion, the medical evidence is to the contrary and that his condition has deteriorated since his admission.

15 Mr Segal, who earnestly appeared for the patient and his family, has sought to rely upon hospital records in relation to the assessments of the patient’s consciousness by use of the Glasgow Coma Scale at various times during his hospitalisation as corroborating the family members by indicating that some improvement has taken place. When the patient was admitted he registered 3 on the scale. This is in effect the lowest score on the scale indicating that the patient had no observable response to external stimuli. However, a nurse, who believed that the patient opened his eyes in response to voice during a shift on 24 October, changed that reading to a 6. Later that date the patient was recorded as 3-6 and there is a note in the records that the eyes opened spontaneously. However, during the last shift for that date the score was back to 3.

16 Although thereafter the patient fluctuated between 3 and 5, there is no notation of the eyes opening in response to voice. The increased score relates to some observations made of the patient’s arm movements in response to painful stimuli. In any event, there is no notation of any purposive eye movements as observed by the family but rather the contrary has been recorded. For example at 17.30 on 23 October the treatment record states, “Occasional non-purposive eye opening noted”. I have already noted that Professor Lance found no purposive eye movements when he examined the patient in the presence of family members.

17 In my opinion Mr Segal places too much weight on the Glasgow Coma Score readings as supporting the family’s observations or as otherwise indicating that there has been some improvement in the patient’s condition. There appears to be only one occasion where it was noted that the eyes opened in response to stimuli, either pain or voice. Otherwise the scores are at the very lowest end of the range consistently with the finding of both Dr Jacques and Professor Lance.

18 Although Professor Lance expressed the opinion that, if the family’s observations were a sound basis for concluding that the patient had purposive eye movements, it might indicate that he had improved by leaving his deep coma state and moving to a vegetative state. However, he believed that the objective medical evidence was inconsistent with the patient having improved in his condition. For example, the Professor found that what he described as “the doll’s eye response” was inconsistent with the patient being in a vegetative state and being capable of the control of his eye movements as witnessed by the family.

19 Mr Segal also relied upon material contained in a publication produced by the National Health and Medical Research Council. It is an Information Paper endorsed on 18 December 2003 and entitled, “Post-coma Responsiveness (Vegetative State): Framework for Diagnosis. This document contains, as I understand it, assistance for those whose function it is to have to diagnose those who are unconscious as a result of severe brain damage and to offer guidance in determining whether the patient is in a vegetative state. It comments upon the difficulty for diagnosis of the severity of brain damage and offers advice in that regard. Professor Lance was asked to comment on aspects of the report but his difficulty was that in his opinion the patient’s objective clinical signs were inconsistent with his having entered into a “post-coma unresponsiveness” or a vegetative state. I do not believe that the material in that document leads me to have any question about the appropriate diagnosis and prognosis for the patient such that I should in effect “second-guess” the apparently consistent medical opinion. A number of medical practitioners have examined the patient and there is no suggestion that there has been any disagreement about diagnosis of the patient’s condition.

20 The patient’s current state includes the following:

(a) being mechanically ventilated through a tube in his mouth and passing down his trachea;

(b) being fed and hydrated through a tube in his mouth and through his arm;

(c) removal of his urine as he is unable to toilet himself;

(d) incontinent of faeces;

(e) unable to swallow his own saliva requiring suctioning of his mouth, nose and throat;

(f) his eyes are taped down in order to prevent corneal ulcers.

21 The withdrawal of the current treatment regime would mean that the patient would be moved out of the Unit. He would no longer be ventilated, active management to control his blood pressure would cease, he would not be resuscitated if he experienced another cardiac or respiratory arrest and he would receive only palliative treatment within the hospital.

22 Mr Segal has submitted that with an unconscious patient such treatment should not be considered as burdensome or demeaning of the patient. I do not believe that this is necessarily a valid view of the present state of affairs. It seems to me that treatment can be burdensome upon the body of a patient notwithstanding that because of his comatose state the patient is not inconvenienced or aware of the effects of the treatment upon his body. Dr Jacques is of the opinion that the current treatment does impose burdens upon the patient in that it leads him open to infection and other complications. True it is that treatment for such matters may not be intrusive in that it may not require anything other than the administration of some antibiotic or other medication.

23 But it does not appear to me to be irrelevant that the current treatment regime is intrusive and will be even more so if it continues. Dr Jacques has given evidence that if the patient remains in the Unit under the present medical regime it will be necessary to perform a tracheostomy. His kidneys are likely to fail if his blood pressure falls and he is open to infection, ulcers and pressure sores.

24 An application such as this can obviously give rise to difficult moral and ethical questions upon which there can be very different views within both the medical profession and the general public. I believe that this Court should only enter into this area of debate where it is clearly necessary to do so in order to exercise its jurisdiction in an appropriate case. This is presumably one of the reasons why the Court should exercise the jurisdiction only with caution.

25 I appreciate that the Court on such an application as the present is concerned with the best interest of the health and welfare of the patient: Northridge at [22] and it is not bound to give effect to the medical opinion, even where, as here, it is unanimous. However, it seems to me that it would be an unusual case where the Court would act against what is unanimously held by medical experts as an appropriate treatment regime for the patient in order to preserve the life of a terminally ill patient in a deep coma where there is no real prospect of recovery to any significant degree. This is not to make any value judgment of the life of the patient in his present situation or to disregard the wishes of the family and the beliefs that they genuinely hold for his recovery. But it is simply an acceptance of the fact that the treatment of the patient, where, as here, the Court is satisfied that decision as to the appropriate treatment is being made in the welfare and interest of the patient, is principally a matter for the expertise of professional medical practitioners: Northridge at [24].

26 I do not believe that there is anything in the decision of O’Keefe J or the principles set out in his judgment that would authorise this court to grant the application, let alone justify it. The evidence is that, apart from preserving the life of the patient for a relatively brief period, the current treatment is futile in that there is no real prospect of significant recovery by the patient. Unlike the situation in Northridge there is no medically substantiated evidence to suggest that the patient is other than in a deep coma state and in particular the evidence is that he is not in a vegetative state. I appreciate that the patient has been in the Unit for a relatively brief period of time and I understand that the family may believe that it has been insufficient for medical practitioners to determine with appropriate degree of confidence the prognosis that there is no real chance of improvement in his condition. However, the facts of the present case are different from that in Northridge as there is no medical evidence suggesting that there is any real prospect of improvement if the current treatment were to be continued for any significant period of time.

27 Mr Segal argued that, where the evidence is that the current treatment regime will, for any period however short, extend the patient’s life and there is no “down-side” by way of threat to the patient’s health, the welfare of the patient is in the continuation of the treatment. I do not accept that the situation is as straightforward as that submission suggests. I do not believe that the patient’s welfare and interest can be so simply determined. Certainly I do not believe that this is an appropriate test for determining whether the Court should cautiously exercise its power. If it were, this Court would always intervene unless it could be shown by the hospital that continued treatment would not prolong the life of the patient significantly. I find it difficult to see how there can be any “down-side” once it is conceded that the treatment will maintain the life of the patient for however short a period of time.

28 Apart from extending the patient’s life for some relatively brief period, the current treatment is futile. I believe that it is also burdensome and will be intrusive to a degree. I am not satisfied that this Court’s jurisdiction has been enlivened by the evidence before me from the family members. The Court is in no better position to make a determination of future treatment than are those who are principally under the duty to make such a decision. The withdrawal of treatment may put his life in jeopardy but only to the extent of bringing forward what I believe to be the inevitable in the short term. I am not satisfied that the withdrawal of his present treatment is not in the patient’s best interest and welfare.

29 The summons is dismissed with costs.

MS BARBARO: We are not seeking costs.

HIS HONOUR: I vacate the order as to costs.

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LAST UPDATED: 12/11/2004