August 2009

The legal right to refuse life saving medical treatment - advanced healthcare directives or "living wills"

An advance healthcare directive (sometimes referred to as a "living will") is a document whereby a person can give directions to healthcare professionals and organisations as to the course of medical treatment which is to be followed after the person loses mental or physical capacity.  Advance healthcare directives can be used by people as part of their estate planning and are often incorporated into documents appointing enduring guardians.

There have been two recent Court decisions that have considered the legal status of advance healthcare directives and the liability implications for healthcare professionals and organisations when faced with such directives.

Hunter and New England Area Health Service v A [2009] NSWSC 761

This was a decision of the NSW Supreme Court and the judgment was given by Justice McDougall on 6 August 2009.

In this case, the defendant (Mr A) was a patient in a hospital conducted by the plaintiff (the Area Health Service).  Mr A had developed renal failure and was being kept alive by mechanical ventilation and kidney dialysis.  The Area Health Service became aware that Mr A had prepared a document indicating he would refuse dialysis.  The Area Health Service commenced legal proceedings seeking declarations that the document prepared by Mr A was a valid advance healthcare directive and that the Area Health Service would be justified in complying with Mr A's directive.  Justice McDougall made the declarations sought by the Area Health Service.

The case is important because it is the first NSW Supreme Court decision that summarises the relevant legal principles surrounding emergency care decisions and the status of advance healthcare directives.

It was made clear that the case was not concerned with any notion about "the right to die".  The case was concerned with the right of a capable adult to refuse medical treatment.

In a helpful judgement, Justice McDougall identified the conflicting interests of a competent adult's right to control his or her own body and the interest of the State in protecting and preserving the lives and health of its citizens.  The judgment also looked at the issues of capacity, vitiation of consent, the emergency principle and the approach to be taken by courts in considering advance healthcare directives.  The judgment noted that the Guardianship Act 1987 (NSW) may give recognition to such directives.

An important relevant principle identified by Justice McDougall was that:

"A person may make an 'advance care directive': a statement that the person does not wish to receive medical treatment, or medical treatment of specified kinds.  If an advance care directive is made by a capable adult, and is clear and unambiguous, and extends to the situation at hand, it must be respected.  It would be a battery to administer medical treatment to the person of a kind prohibited by the advance care directive.  Again, there may be a qualification if the treatment is necessary to save the life of a viable unborn child."

The Court also noted that the summary of the relevant legal principles surrounding emergency care decisions and advance healthcare directives applied not only to hospitals and medical practitioners.  The stated principles applied more broadly to all those who administer medical treatment (including ambulance officers and paramedics).

Brightwater Care Group (Inc) v Rossiter [2009] WASC 229

This was a decision of the Supreme Court of Western Australia and the judgment was given by Chief Justice Martin on 14 August 2009.  The judgment referred to the above NSW Supreme Court decision.

Brightwater Care Group (Brightwater) operates a residential care facility in Perth for people with disabilities.  Mr Christian Rossiter (Mr Rossiter) is a resident of the Brightwater facility.  Mr Rossiter is quadriplegic and is generally unable to move.  He is only able to talk through a tracheotomy.  He is unable to take nutrition or hydration orally.  The nutrition and hydration Mr Rossiter requires to survive is provided by way of a tube inserted directly into his stomach.

Mr Rossiter indicated to his doctor and representatives of Brightwater on many occasions that he wanted to die.  He directed staff of Brightwater to discontinue the provision of nutrition and hydration through the tube to his stomach.  If the staff comply with Mr Rossiter's directive, he will die from starvation.

This case is different from other cases in that Mr Rossiter is not terminally ill, or dying.  He can communicate his wishes and has full mental capacity.

Brightwater commenced legal proceedings seeking declarations about its rights and obligations.  It was concerned that complying with Mr Rossiter's directions might result in criminal prosecution.

After reviewing the position at common law and the relevant Western Australian statutory provisions, Chief Justice Martin made two declarations.  The first declaration was as follows:

"If after Mr Rossiter has been given advice by an appropriately qualified medical practitioner as to the consequences which would flow from the cessation of the administration of nutrition and hydration, ... Mr Rossiter requests that Brightwater cease administering such nutrition and hydration, then Brightwater may not lawfully continue administering nutrition and hydration unless Mr Rossiter revokes that direction, and Brightwater would not be criminally responsible for any consequences to the life or health of Mr Rossiter caused by ceasing to administer such nutrition and hydration to him."

Implications for Estate Planning

Advance healthcare directives are frequently used by people as part of their estate planning.  In order for such directives to have the desired legal effect, it is important that they are clear and unambiguous and that they are communicated to those who may be responsible for a person's medical treatment.


Author: Gerard Basha