Deed of Enduring Guardianship put to test

29-November-2010 Guardianship By Mark Streeter

Does a Deed of Enduring Guardianship allow a hospital to stop medical treatment even if it is keeping a patient alive?

The case of Hunter and New England Area Health Service v A [2009] NSWSC 761 in 2009  raised this very important question. A Deed of Enduring Guardianship is often seen as a Living Will. It is similar in many ways to the more common Enduring Power of Attorney. A Deed of Enduring Guardianship, Living Will and Enduring Power of Attorney are legal documents with the intention of making clear your intentions in situations where you are not capable to represent yourself.

Note: The patient’s name has been suppressed to maintain his confidentiality. He is referred to as Mr A.

The Facts behind the Deed of Enduring Guardianship

Mr A was admitted to the emergency department of Hospital of the Hunter New England Health Service on 1 July 2009 suffering from septic shock and respiratory failure and showing decreased level of consciousness. Mr A was transferred to the intensive care unit however his condition deteriorated.   Mr A developed renal failure.

By 14 July 2009 Mr A was kept alive by a mechanical ventilation and kidney dialysis.  On or about the 14th of July 2009 the Hospital became aware of a document prepared by Mr A approximately a year earlier indicating that he would refuse dialysis.  Accordingly the Hospital filed an application in the Supreme Court of NSW seeking a declaration as to the validity of this document as an “Advanced Care Directive” given by Mr A and whether or not it would be justified in complying with Mr A’s wishes as expressed in that document.

– Medical opinion was that the withdrawal of dialysis would hasten Mr A’s death.

– Mr A was a Jehovah’s witness and had properly executed a deed of Enduring Guardian in which he nominated other people to be his Guardians and the Deed specifically refused the consent in respect of the donation or transfusion of blood.  This Deed did not deal with the issue of dialysis.  However, Mr A had on another instance completed a “worksheet” in which he had selected a multiple choice option of “I refuse” in relation to dialysis.  It was the evidence of a friend that this document reflected Mr A’s wishes and that that view had not changed at any material time thereafter.

Issues of State’s Interest versus Individual’s Interests

Justice McDougall J. in the Supreme Court recognised that in this area there were two relevant but conflicting interests namely:
a)     The competent adults right of autonomy and self determination :  the right to control his or her own body; and
b)    The interest of the State in protecting and preserving the lives and health of its citizens.

After discussing other cases and legal authorities his Honor said, At paragraph 17:

It is in general clear that, whenever there’s a conflict
between a capable adult’s exercise of the right of determination
and the State’s interest in preserving life,
the interest of the individual must prevail.

Mental capacity to make a Deed of Enduring Guardianship

His Honor also found that there was a presumption of capacity of an adult to consent or to refuse medical treatment unless that presumption is rebutted.  His Honor observed that as a question of fact capacity can vary and assessing whether or not a person has the capacity to make a decision, the sufficiency of the capacity must take into account the importance of the decision.

Justice McDougall quoted with authority extracts from an earlier case of Re MB noting that a person suffers from an impairment or disturbance of mental functioning which will render that person incapable of making a decision if:
a)    That person is unable to comprehend and retain the information which is material to this decision, in particular of the consequences of the decision; or
b)    The person is unable to use and weigh the information that is part of the process of making the decision.

When Consent is not Consent

An apparent consent is also noted to potentially ineffective in a number of circumstances such as:

  •  a person being legally incapable of providing consent; or
  •  The consent being obtained by undue influence; or
  •  The consent being ambiguous or uncertain; or
  •  The consent being limited and not cover the particular circumstances or issue.

Justice McDougall acknowledged the “emergency principle” whereby a medical treatment provider may lawfully treat a patient in accordance with that person’s clinical judgment of what is in the patient’s best interest.   Justice McDougall adopted earlier authorities in noting that this may apply providing two conditions are met:
a)    That there must be “a necessity to act when it is not practical to communicate with the assisted person”;  (“or some other person authorized to give consent on behalf of the assisted person”)
b)    The action taken must be such as a reasonable person would in all the circumstances, acting in the best interest of the assisted person.

Conclusion – permission to stop dialysis

In applying these principles Justice McDougall determined that based on medical evidence the direction and instruction provided by Mr A approximately one year prior to his admission to the Hospital was done at a time when he was perfectly capable of making up his own mind and the document in evidence in the Court represented his considered views. 

Accordingly the Judge made declarations permitting the Hospital to withdraw dialysis while acknowledging this would cause to hasten Mr A’s death.

Comment from Mark Streeter – Sydney Family Law LawyerMark Streeter Family Law Lawyer Sydney

This is quite an important decision made in intense and stressful circumstances. The Court must weigh up the patient’s ability to provide their “real” consent.  Invasive medical treatment in the absence of consent will constitute assault. The Judge was at pains to point out that this was not a “right to die” decision.  There was no decision or provision of any treatment or medicine that would “speed up” the death of the concerned person. The consolidation and description of the relevant principles in this judgment will be a very useful guide for all medical service providers (and their lawyers). If there is any doubt as to whether or not an individual has provided their consent the hospital should make an urgent application to the court seeking appropriate declarations.

The Judgment also affirms and recognizes the legal effectiveness of a properly drafted Deed of Enduring Guardianship. You can make decisions for yourself in advance in to provide for circumstances of when you are not capable of making those decisions for yourself.


The Principles of Medical Treatment, Consent and Deed of Enduring Guardianship
A very helpful restatement of The Principles by Justice McDOUGALL at paragraph 40 of Hunter and New England Area Health Service v A [2009] NSWSC 761:

  1. except in the case of an emergency where it is not practicable to obtain consent (see at (5) below), it is at common law a battery to administer medical treatment to a person without the person’s consent. There may be a qualification if the treatment is necessary to save the life of a viable unborn child.
  2. Consent may be express or, in some cases, implied; and whether a person consents to medical treatment is a question of fact in each case.
  3. Consent to medical treatment may be given:- by the person concerned, if that person is a capable adult;
    – by the person’s guardian (under an instrument of appointment of enduring guardian, if in effect; or by a guardian appointed by the Guardianship Tribunal or a court);
    – by the spouse of the person, if the relationship between the person and the spouse is close and continuing and the spouse is not under guardianship;
    – by a person who has the care of the person; or
    – by a close friend or relative of the person.
  4. At common law, next of kin cannot give consent on behalf of the person. However, if they fall into one or other of the categories just listed (and of course they would fall into at least the last) they may do so under the Guardianship Act.
  5. Emergency medical treatment that is reasonably necessary in the particular case may be administered to a person without the person’s consent if the person’s condition is such that it is not possible to obtain his or her consent, and it is not practicable to obtain the consent of someone else authorised to give it, and if the person has not signified that he or she does not wish the treatment, or treatment of that kind, to be carried out.
  6. 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.
  7. There is a presumption that an adult is capable of deciding whether to consent to or to refuse medical treatment. However, the presumption is rebuttable. In considering the question of capacity, it is necessary to take into account both the importance of the decision and the ability of the individual to receive, retain and process information given to him or her that bears on the decision.
  8. If there is genuine and reasonable doubt as to the validity of an advance care directive, or as to whether it applies in the situation at hand, a hospital or medical practitioner should apply promptly to the court for its aid. The hospital or medical practitioner is justified in acting in accordance with the court’s determination as to the validity and operation of the advance care directive.
  9. Where there is genuine and reasonable doubt as to the validity or operation of an advance care directive, and the hospital or medical practitioner applies promptly to the court for relief, the hospital or practitioner is justified, by the emergency principle, in administering the treatment in question until the court gives its decision.
  10. It is not necessary, for there to be a valid advance care directive, that the person giving it should have been informed of the consequences of deciding, in advance, to refuse specified kinds of medical treatment. Nor does it matter that the person’s decision is based on religious, social or moral grounds rather than upon (for example) some balancing of risk and benefit. Indeed, it does not matter if the decision seems to be unsupported by any discernible reason, as long as it was made voluntarily, and in the absence of any vitiating factor such as misrepresentation, by a capable adult.
  11. What appears to be a valid consent given by a capable adult may be ineffective if it does not represent the independent exercise of persons volition: if, by some means, the person’s will has been overborne or the decision is the result of undue influence, or of some other vitiating circumstance.

Common miss-spellings: power of atterney, power of atterny, enduring power of attourney, enduring power of attorny

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Written by Mark Streeter

Mark Streeter

The Director of Streeterlaw, Mark has been practicing Law since 1994. He has attained his Masters of Law in 1999 and in 2006 was awarded his Specialist Accreditation in Commercial Litigation. Mark is a member of ARITA, a graduate of the AICD and a member of AICM. A member of STEP, Mark enjoys working in the area of Wills and Estates. In 2020 Mark is the Chair of STEP NSW.

Call us on 02 8197 0105 to book an appointment with Mark Streeter!

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