Cases

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Background

In this case, ACT Health applied to the Supreme Court for a declaration that ‘it is lawful for [Canberra Hospital] not to administer nutrition and hydration to [JT] other than is necessary for the provision of palliative care’ (at 22).  

JT is an elderly man with a long psychiatric history of paranoid schizophrenia, who believes that fasting will bring him closer to God. He has been under Guardianship and Psychiatric Treatment orders since 2005. During that time JT’s obsession with fasting has continued, and he has refused and/or resisted medical treatment, including naso-gastric intubation. This has led to JT’s health’s deteriorating to its current critical state.   

Physicians charged with treating JT consider that his survival beyond 12-months is unlikely even with treatment. In their view it would be best for JT if the hospital adopted a ‘simple palliative approach’ to his care. As His Honour put it, ‘[t]hat is, avoiding euphemisms, to allow the patient to starve to death whilst easing the suffering associated therewith’ (at 15).  JT’s guardian, the ACT Public Advocate, supports the approach recommended by JT’s physicians. 

Decision

His Honour refused the application. 

Reasoning 

Chief Justice Higgins considered that because JT was not of sound mind and capable of informed consent, the application should be determined on the basis that JT cannot be regarded as having agreed to withdrawal of or refusal to apply available medical treatment (Hunter and New England Area Health Service v A [2009] NSWSC 761).

His Honour considered the case put to him of Auckland Area Health Board v Attorney-General [1993] 1 NZLR 235. In that case, the court granted an order by doctors who sought a declaration that it was lawful for them to cease life support of their patient who was in an irreversible vegetative state. Chief Justice Higgins noted that Auckland similarly considered as relevant to its determination the rights to life and dignity in the  New Zealand Bill of Rights Act 1990 (equivalent to ss 9 and 10 of the HRA).  

His Honour then distinguished this case from Auckland. In Auckland: (at 32)

The declaration was […] framed so as to be subject to the conditions that (i) there was no reasonable prospect of recovery; (ii) there was no therapeutic or medical benefit to be gained by maintaining life support and withdrawal of it accorded with best medical practice and (iii) relatives and the relevant ethics committee concurred. 

Chief Justice Higgins reasoned that in this case, the ‘available medical treatment’ will not include treatment that is futile for JT. His Honour queried the lack of evidence put before him, particularly why there was no independent assessment made on the possibility that JT’s obsession with fasting might improve over time, or why there was no contradictor to the ACT Health’s proposal.   

Chief Justice Higgins then considered an argument put forward by the ACT Health, namely that because JT was refusing and forcibly resisting any treatment, forcing the treatment on him would be degrading to his person per s 10 HRA. His Honour reasoned that: (at 63)

It is not a relevant consideration in the present case that the Territory’s relevant care providers would find the provision of care distressing and believe it to violate JT’s s 10 rights to humane treatment.  They remain under a duty to give competent and effective treatment despite that concern.

His Honour concluded that on the evidence before him, it might be unlawful to decline to give JT medical treatment which is available and which might, at least in the short to medium term, avert his otherwise imminent death. Because it might be unlawful, his Honour held that he could not, with further evidence put before him, grant the declaration.

Comment

Chief Justice Higgins’ reasoning in this case accords closely with the long-established position that a human rights consistent framework for the withdrawal or withholding of medical treatment must necessarily operate from the presumption in favour of life-sustaining treatment except where such a presumption would conflict with the competent patient’s right to refuse treatment.