Australian Capital Territory v JT [2009] ACTSC 105 (28 August 2008)

Last Updated: 22 September 2009

HUMAN RIGHTS ACT

AUSTRALIAN CAPITAL TERRITORY v JT

[2009] ACTSC 105 (28 August 2009)

DECLARATION – advisory opinion – parens patriae jurisdiction of the court – whether it is lawful for the plaintiff not to administer nutrition and hydration other than is necessary for the provision of palliative care

MEDICAL TREATMENT – patient suffers from paranoid schizophrenia characterised by religious obsessions – patient resists medication – patient’s fasting amounts to starvation and is life threatening – patient on Guardianship and Psychiatric Treatment Orders

MENTAL CAPACITY – consent to medical treatment – free and informed consent – patient’s wishes based on a delusional set of assumptions

Criminal Code Compilation Act 1913 (WA), ss 259, 262

New Zealand Bill of Rights Act 1990

Human Rights Act 2004 (ACT), ss 9, 10

Mental Health (Treatment and Care) Act 1994 (ACT)

Australian Capital Territory (Self-Government) Act 1988 (Cth), s 48A

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

Imperial Tobacco Ltd v Attorney-General [1981] AC 718

Auckland Area Health Board v Attorney-General [1993] 1 NZLR 235

Adult Guardian v Langham [2005] QSC 127

Airedale National Health Service Trust v Bland [1992] UKHL 5; [1993] AC 789

Re T [1992] EWCA Civ 18; [1992] 3 WLR 782

Re S [1992] 3 NZLR 363

Re G [1997] 2 NZLR 201

Pallin v Department of Social Welfare [1983] NZLR 266

Re X [1991] 2 NZLR 365

F v West Berkshire HA [1989] 2 WLR 1025

Secretary, Department of Health and Community Services v JWB & SMB (Marion’s Case) [1992] HCA 15; (1992) 175 CLR 218

In re B (A Minor) (Wardship: Medical Treatment) [1981] 1 WLR 1421

In re J (A Minor) (Wardship: Medical Treatment) [1991] 2 WLR 140

Messiha v South East Health [2004] NSWSC 1061

Northridge v Central Sydney Area Health Service [2000] NSWSC 1241; (2000) 50 NSWLR 549

Krommydas v Sydney West Area Health Service [2006] NSWSC 901

Re BWV; Ex parte Gardner [2003] VSC 173; (2003) 7 VR 487

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

No. SCC 745 of 2009

Judge: Higgins CJ

Supreme Court of the ACT

Date: 28 August 2009

IN THE SUPREME COURT OF THE )

) No. SCC 745 of 2009

AUSTRALIAN CAPITAL TERRITORY )

AUSTRALIAN CAPITAL TERRITORY

(Plaintiff)

v

JT

(Defendant)

ORDER

Judge: Higgins CJ

Date: 28 August 2009

Place: Canberra

THE COURT ORDERS THAT:

1. The application be refused.

1. This is an application by the plaintiff (the Territory) for a declaration that it is lawful for medical practitioners employed by the Territory to desist from affording other than palliative care to the plaintiff (JT).

2. JT is a 69 year old man of Romanian birth. He is a long term resident of Australia and the Australian Capital Territory. He came to attention of ACT Mental Health authorities in May 1992. He severely injured himself falling from his upstairs flat in the belief that he could fly like a dove. He was found to be chronically psychotic suffering from paranoid schizophrenia characterised by religious obsessions. There was a psychiatric history dating back many years.

3. At that time medication effected a remission of JT’s psychotic symptoms. However, JT was resistant to continuing medication voluntarily. His mental state and physical state deteriorated to the extent that he was admitted to Jindalee Aged Care facility in 1993. Following the death of Pope John Paul II in 2005, JT became obsessed with fasting to bring him closer to God. It is this fasting that has led to his current critical state.

4. His file indicates that the fasting really amounts to starvation and is life threatening in itself. There have been remissions in his obsession. During 2005 he expressed a view that he wished to die though, on balance, it seems likely that he believed that though warned he would die if he refused sustenance, he had the irrational belief that God would not let him die. JT was during 2005 placed on both Guardianship and Psychiatric Treatment Orders. They have continued to date.

5. The refusal to take food has led to physical resistance by JT to treatment including naso-gastric intubation. That process, though necessary to sustain JT’s life, clearly causes distress both to him and staff carrying out the procedure.

6. In summary, the psychotic beliefs JT suffers from are slowly but surely killing him.

7. Father Ben Roberts is JT’s parish priest. Respecting JT’s religious beliefs, Father Roberts has attempted to reason with JT about his dangerous fasting practices. However, JT has become more withdrawn of late and has ceased to respond to Father Roberts’ attempts at ministry.

8. Ms Cheryl Hart is Deputy Director of Nursing at Jindalee. She has known JT since his admission in March 1993. His presentation was, despite his mental and physical disabilities, uneventful up until 2005. He had no relatives or friends. He did participate in religious services. Indeed, Father Roberts describes him, in effect, as a devout Catholic. He did, for religious reasons, observe fasting from time to time. Things changed with the death of Pope John Paul II on 2 April 2005. He became fixated on this event, seeing the Pope in the car park. He refused medication and his fasting became extreme.

9. He was hospitalised on 8 April 2005 and, to avoid starvation, was fed by naso-gastric tube. After discharge from Canberra Hospital and return to Jindalee he ate satisfactorily and gained weight. He relapsed, however, and was re-admitted for feeding treatment. Over the following four years, his behaviour has been characterised by withdrawal from interaction with others. He accepts his anti-psychotic medication by injection though it is involuntary. I accept that staff might find this behaviour distressing. He has, when naso-gastric intubation has been applied, attempted resistance to the treatment and has had to be forcibly restrained from doing so.

10. Dr Mary Kulh is a geriatric specialist who treated JT during his current admission. He required rehydration and is currently hydrated and nourished by saline and glucose. This is a temporary treatment. Artificial feeding is likely to be resisted and, save in the short term, ineffectual unless delivered, not by naso-gastric tube, but by percutaneous endoscopic gastrotomy (PEG). The latter treatment, involving a feeding tube surgically inserted, would be effective if successfully inserted and retained but survival beyond 12 months even with such treatment would be unlikely, though a minority of patients may survive longer. Re-feeding can itself hasten death. It is described as the ‘prisoner of war’ syndrome.

11. Dr Kulh does not, on balance, recommend artificial feeding largely because of the distress that would be caused to JT in applying the necessary restraints to successfully achieve it.

12. The psychiatric opinion is no more optimistic. Dr Judith Raymond acknowledges that the physical peril JT is in is attributable wholly to his mental illness.

13. Until the last admission to hospital, although the treatment was distressing to staff, it had succeeded temporarily.

14. Dr Raymond had, as early as September 2005, considered that it might be preferable to adopt “a simple palliative approach”.

15. That is, avoiding euphemisms, to allow the patient to starve to death whilst easing the suffering associated therewith.

16. Dr Raymond had after JT’s admission, received a concerned call from Dr David Elliott, Emergency Department doctor, about the appropriateness of subjecting JT to involuntary rehydration against his will.

17. Dr Raymond also consulted another Psychiatrist, Associate Professor Jeff Looi. He had previously shared with Dr Raymond the care of JT. There was also consultation with the Canberra Hospital Clinical Ethics Committee. Their response was to the effect that, as JT was accepting of death, his mental state indicating capacity to consent should be ignored and his “wishes” respected. That is an outrageous approach to ethical standards which require a free and informed consent before a course involving such grave risk as premature death is adopted.

18. The truth is that JT lacks the capacity for informed consent and his ‘wishes’ are the product of delusional and irrational thought in turn the product of his severe mental illness. The approach to his care can be no less than would be the case if he lacked consciousness or was a helpless infant. Indeed, even his apparent acceptance of death is premised on the irrational view that God will preserve him from such a consequence.

19. JT’s general practitioner, Dr Dillon, seems to have accurately summarised the present dilemma for his treating physicians:

... [JT] will never be cured of his schizophrenia and I am concerned we will see more frequent episodes in future. His physical condition has never had time to recover between bouts (despite high level institutional care) and I understand his weight has dropped significantly again ... he lacks any significant insight into how his behaviour could risk his life. I feel I can predict a time when his bodily systems could steadily deteriorate into organ failure and he could suffers (sic) serious, untreatable and painful joint contracture complications. I believe unhesitatingly that this potentially horrendous physical distress and suffering allows for appropriate palliation; although I remain uncomfortable with the idea that the palliative process originated in behaviours secondary to delusional and not rational thought.

20. Associate Professor Looi has explained in a report to Dr Dillon of 27 February 2009 that anti-psychotic medication is already at maximum tolerable levels.

21. Ms Anita Phillips, Public Advocate, has the role of guardian of JT under a guardianship order. She does not oppose any course recommended by JT’s physicians. She does not wish to propose that he be forcibly nourished to sustain his life. Her conclusion, however, that it accords with his wishes, must be qualified by the obvious conclusion that those wishes are irrational and based on a delusional set of assumptions arising from his mental illness.

22. The Territory, in these circumstances, applies for a declaration that:

... it is lawful for the plaintiff not to administer nutrition and hydration to [JT] other than is necessary for the provision of palliative care to [JT].

Can such a declaration be made?

23. This is a fundamental question. It is not directing the relevant Territory agency to do or refrain from doing any act or omission. It seeks an advisory opinion. That is usually regarded as outside judicial power.

24. The Territory, supported by the Public Advocate, submits that such a declaration is appropriate.

25. Mr Harris SC points out that a starting point is that the imposition of medical treatment, without consent of the patient is a battery and, hence, unlawful.

26. That is indeed so. Hence, in the recent case of Brightwater Care Group (Inc) v Rossiter [2009] WASC 229, Martin CJ held that a patient of sound mind was competent to refuse nutrition though it would lead to his death and those otherwise under a duty to provide nutrition and treatment would not breach the criminal law by respecting the patient’s wishes.

27. Martin CJ acknowledged that to declare a proposed course of conduct criminal or non-criminal is exceptional, citing Imperial Tobacco Ltd v Attorney-General [1981] AC 718. It could only be as to proposed conduct as otherwise it would undoubtedly usurp the role of the criminal courts to express an advisory opinion on conduct that had already taken place.

28. However, the real question before his Honour was whether, if they carried out the plaintiff’s directions, the defendants would act unlawfully. His Honour concluded that a PEG or other medical treatment constituted one of the necessaries of life which a person having charge of another must provide under s 262 of the Criminal Code Compilation Act 1913 (WA). It is a duty subject to s 259 of that Code, that is, if the cessation of treatment, done in good faith, is reasonable “having regard to the patient’s state at the time and to all the circumstances of the case”.

29. That case, of course, is fundamentally distinguishable from the present. The patient here lacks both understanding of the proposed conduct and the capacity to give informed consent to it. Thus, those charged with JT’s care remain under the common law duty to provide that care to the best of their skill and ability.

30. There are other situations apart from Rossiter’s case where withdrawal of life-support has been held lawful.

31. In Auckland Area Health Board v Attorney-General [1993] 1 NZLR 235 doctors sought a declaration that it was lawful for them to cease life support. The patient was in an irreversibly vegetative state. That order was granted. It was, however, noted that such an order could not bind the Court in the exercise of its criminal jurisdiction. It was noted that the New Zealand Bill of Rights Act 1990 protected, as does the Human Rights Act 2004 (ACT), both the right to life (s 9) and the right to be treated with humanity and dignity (s 10).

32. The declaration was, however, 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.

33. In the present case the provision of nutrition and hydration will provide a benefit, in the sense that life will be maintained, albeit, that it will to an extent derogate from the patient’s dignity.

34. Indeed, Adult Guardian v Langham [2005] QSC 127 is authority for the view that to so feed a psychotic patient refusing sustenance is “treatment” that could be authorised by his guardian. Treatment will not change the psychosis but it would tend to alleviate the malnutrition.

35. The present case is the converse of that. The guardian does not seek to have treatment given but rather withheld.

36. Airedale National Health Service Trust v Bland [1992] UKHL 5; [1993] AC 789 (HL) was a similar case to the Auckland Area Health Board case. It was held that the doctors could lawfully withdraw life support. Though the patient’s best interests were in being kept alive, that objective had disappeared due to the hopelessness of his condition. Efforts to maintain life were, it was found, futile.

37. In the present case that situation could occur but has not arisen at this point.

38. Even in the case of a competent adult refusing treatment, medical carers are not entitled to respect those wishes and may be under a duty not to if there is reason to suppose that the capacity of the patient to make a reasoned decision has been diminished by illness or medication, false assumptions, misinformation or undue influence. If so, the medical carers must apply such treatment as their clinical judgment deems to be in the best interests of the patient apart from those wishes. Primarily, that is the patient’s continued survival compatibly with, not the interests of the medical carers institutional or otherwise, but the interests of that patient. In that context it would involve a judgment as to the quality of the continued state of the patient as against the temporary risks or discomfort. Thus the use of forcible restraint to achieve a therapeutic benefit or avert a therapeutic disaster would be the duty of medical carers to apply not an option they can simply chose to avoid out of distaste for it. (See Re T [1992] EWCA Civ 18; [1992] 3 WLR 782).

39. It is apparent that enforced medication of a mentally ill patient is not a breach of the Human Rights Act (see Re S [1992] 1 NZLR 363).

40. In the case of Re G [1997] 2 NZLR 201, the High Court of New Zealand (Fraser J) declared that it was lawful to withdraw life support from a patient in a vegetative state.

41. The evidence in that case did not go so far as to assert that that state was undoubtedly permanent. The application to cease treatment was supported by expert medical opinion, ethical approval, support of family and the likely wishes of the patient.

42. His Honour noted that the parens patriae jurisdiction of the court could justify, in some cases, the substitution of the court’s consent for that of the patient (see Pallin v Department of Social Welfare [1983] NZLR 266; Re X [1991] 2 NZLR 365). That jurisdiction has been exercised, for example, in cases of an infant where parents, for conscientious reasons, deny consent to treatment.

43. That is not the jurisdiction sought to be enlivened here, assuming it has continued in respect of persons subject to the Mental Health (Treatment and Care) Act 1994 (ACT) (see, however s 48A, Australian Capital Territory (Self-Government) Act 1988 (Cth). Of course, if consent could be and was given there would be no need for declarations, though they might be expedient to remove doubt as Fraser J found in Re G (supra). His Honour held that life-support could, on balance, be lawfully terminated.

44. At a less extreme level a declaration has been granted to enable sterilisation of a mentally handicapped woman (see F v West Berkshire HA [1989] 2 WLR 1025). To similar effect is Secretary, Department of Health and Community Services v JWB & SMB (Marion’s Case) [1992] HCA 15; (1992) 175 CLR 218.

45. Those decisions make it plain that although treatment by way of surgical intervention is unlawful if not consented to, that does not authorise or require withholding of treatment in the case of a person lacking capacity to consent. The need in such and like cases for judicial supervision is acknowledged in the joint judgment of Mason CJ, Dawson, Toohey and Gaudron JJ. The example of surgery proposed to enable a child to be disabled so as to be a more effective beggar suffices to illustrate the point. Thus, the fact that parents and medical carers support the proposed procedure, though relevant, is not decisive. It is for the court, in such a case, to determine whether the best interests of the patient require such an extraordinary step as to authorise such treatment. That may result in a conclusion that may well be contrary to the best interests of the parents and/or the medical and other carers. That is not relevant to the ascertainment of the best interests of the patient.

46. That conclusion is illustrated by the case of In re B (A Minor) (Wardship: Medical Treatment) [1981] 1 WLR 1421. A gravely disabled child suffered an intestinal blockage. Without surgery she would die within days. With successful surgery, she would live for a shortened life span due to the pre-existing disabilities and subject to the serious suffering they imposed. The parents believed it was kinder to let her die. The medical carers believed that they should respect the parent’s wishes. The Court of Appeal, Templeman and Dunn LJJ, reversed the primary finding supporting withholding of treatment.

47. At 1423, Templeman LJ summarised the situation as follows:

The evidence, as I have said, is that if this little girl does not have this operation she will die within a matter of days. If she has the operation there is a possibility that she will suffer heart trouble as a result and that she may die within two or three months. But if she has the operation and it is successful, she has Down’s syndrome, is mongoloid and the present evidence is that her life expectancy is short, about 20 to 30 years ... one thing is certain. She will be very handicapped mentally and physically and no one can expect that she will have anything like a normal existence.

48. The court directed that treatment be given. There is clearly some analogy here with the situation in which JT is placed.

49. However, the obligation to preserve life is not absolute. In re J (A Minor) (Wardship: Medical Treatment) [1991] 2 WLR 140 the Court of Appeal considered the case of a ward faced with horrendous disabilities including the likelihood of periodic respiratory collapse. The treating physician proposed that in that event, mechanical resuscitation not be employed. The judge at first instance did not direct any action to reverse that recommendation. The Court of Appeal upheld that decision.

50. In doing so, the Court made the following observation:

No one can dictate the treatment to be given to the child – neither court, parents nor doctors ...

51. There is, the court acknowledged, a strong presumption in favour of prolonging life. The proposal approved in the latter case was, in effect, to authorise the withholding of treatment which, in the circumstances, appeared either futile or likely to cause further unacceptable damage but considered such treatment would be lawful if the medical carers approved of it. If there was any absolute principle it was that the court would not sanction steps to terminate life or accelerate death. The only question was whether or not intervention to prolong life should be given or withheld. The giving of appropriate palliative care is in no way inhibited by that principle.

52. Messiha v South East Health [2004] NSWSC 1061 involved a different situation. The patient was comatose. He was not expected to survive beyond a few weeks. His medical carers wished to cease active treatment and apply palliative care only. The family considered that there was hope of recovery. Howie J made the point that the decision to cease treatment could not be based on the convenience, even the needs, of the medical carers or their institutions. It was the welfare of the individual patient which was paramount.

53. The evidence disclosed that the prospects for recovery the relatives perceived was, in truth, illusory. The issue was whether medical carers should be directed to give treatment they considered, on reasonable grounds, to be futile. It is significant that that conclusion was confirmed by independent specialist opinion.

54. I note that at [25] – [26] Howie J, referring to the decision of O’Keefe J in Northridge v Central Sydney Area Health Service [2000] NSWSC 1241; (2000) 50 NSWLR 549, stated:

[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.

55. Krommydas v Sydney West Area Health Service [2006] NSWSC 901 involved a similar situation.

56. In Northridge (supra) O’Keefe J had ordered the resumption of feeding and life support although treating doctors considered the patient’s condition hopeless and further treatment futile. However, that diagnosis was challenged by independent experts. His Honour was not persuaded that further treatment was, indeed, futile. Hence orders were made to direct continued treatment.

57. A case with some relevance to the present situation, albeit with some significant differences, was Re BWV; Ex parte Gardner [2003] VSC 173; (2003) 7 VR 487.

58. The patient was under the guardianship of the Public Advocate (Victoria). She was aged 68 and suffering progressive and terminal dementia. She had no cognitive or sensory functions. Her only bodily functions were reflexive. She was sustained only by PEG. The Public Advocate sought leave to cease the “treatment” by PEG and allow palliative care only. That PEG did constitute “treatment” not “palliative care” was held to be so by Morris J and I agree with that view albeit that those terms were considered in a statutory context. That conclusion accords, I consider, with the usual meaning of those terms.

59. It was open to the Public Advocate, as guardian in that case, to refuse, on behalf of the patient, that medical procedure.

60. That case, of course, differs from the present in that, in the case of JT, PEG treatment would not, in the short term at least, be futile. It will not, however, cure his underlying condition which is that which threatens his longer term survival.

61. I was, finally, referred to Hunter and New England Area Health Service v A [2009] NSWSC 761. That case, however, concerned a patient who had, before becoming unconscious, directed that no dialysis treatment be given to him. He was of sound mind and capable of informed consent. That part of the decision relevant to the present case is the reservation that apparent consent may be vitiated by the lack of competence of the person expressing consent to validly give it.

62. The current application must, therefore, be determined on the basis that JT cannot be regarded as having agreed to withdrawal of or refusal to apply available medical treatment. That must include, if it can be done, PEG infusion of appropriate nutrients. That will not be required if that treatment, though it might postpone death, would be futile. In that context futility will embraces mere functioning of the body without hope of a sentient response. It is not futile simply because an underlying condition is likely in the future to reassert itself so as to cause the current life-threatening circumstances to recur. Nor is it rendered futile by the prospect that the patient, driven by the underlying psychosis that creates his incompetence to give or refuse consent, will resist the treatment. Overcoming such resistance is an ordinary incident, though a distressing and confronting one, of emergency care. It does not usually indicate an informed consent to the denial of medical treatment.

63. I also note that there is no independent assessment of the possibility that JT’s obsession with fasting might ameliorate or change focus. Nor is there any contradictor of the proposal made by the Territory. 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.

64. If JT was competent to refuse treatment the situation would be otherwise. He is not. Thus the Territory is no more entitled to refuse treatment to JT than any other person in its care who is unable competently to refuse it.

65. It remains, of course, a matter of clinical judgment whether any proposed course of treatment would be medically feasible.

66. However, that is not something to which the present application relates. It simply asks for a declaration that it is lawful to decline to give JT medical treatment which is available and might, at least in the short to medium term, avert his otherwise imminent death. In my view, it might well be unlawful so to do. I, therefore, cannot declare that it would be lawful on the evidence so far presented.

67. The application is therefore refused.

I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date: 28 August 2009

Counsel for the Plaintiff: Mr J Harris SC with Mr D Mossop

Solicitor for the Plaintiff: ACT Government Solicitor

Counsel for the Defendant: Mr B Meagher SC

Solicitor for the Defendant: Blumers

Date of hearing: 24 August 2009

Date of judgment: 28 August 2009