Deed of Enduring Guardianship put to test

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:

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 Lawyer

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.

Written by 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!