Citation: Application of Justice Health; re a Patient [2011] NSWSC 432
Court: Supreme Court of New South Wales
Date: 30 March 2011
Judge(s): Brereton J
Background
The patient was an inmate at a NSW correctional centre diagnosed with end-stage lung cancer, with a prognosis of days to weeks. He lacked capacity to consent to or refuse any medical treatment, had no appointed guardian, and no person available to provide substituted consent. No family member wished to be involved in the medical decision-making process.
Justice Health, the body responsible for the patient's medical care, sought court declarations authorising the discontinuation of life-sustaining treatment and the issuing of a "not for resuscitation" order. Unanimous medical opinion held that further active treatment, including cardiopulmonary resuscitation (CPR), would be futile, achieving nothing beyond a brief prolongation of life without quality.
A specific statutory question arose because the patient was an inmate. Section 72A of the Crimes (Administration of Sentences) Act 1999 (NSW) requires that inmates be supplied with medical attendance, treatment, and medicine necessary for "the preservation of the health of the inmate." The question was whether that provision compelled the administration of CPR in the circumstances.
Legal Issues
- Whether the parens patriae jurisdiction of the Supreme Court was engaged, given that the proposal was to withhold treatment rather than to administer invasive therapy.
- Whether medical practitioners require court authorisation to withhold futile treatment from an incapacitated patient who cannot consent.
- Whether section 72A of the Crimes (Administration of Sentences) Act 1999 (NSW) obliged Justice Health to administer CPR or other life-prolonging treatment to the inmate.
- Whether the mere prolongation of life, without quality, constitutes "preservation of the health of the inmate" for the purposes of section 72A.
Decision
On the parens patriae jurisdiction and need for court authorisation
Brereton J observed that the parens patriae jurisdiction is typically engaged where what is proposed would otherwise constitute an unlawful assault on an incapacitated person, such as the performance of an invasive procedure without consent. The present case was different: the proposal was to withhold aggressive treatment, not to administer it. Since withholding treatment does not constitute an assault, the patient's consent (or the court's consent as a substitute) was not required as a legal precondition.
His Honour also noted that patients have no absolute right to demand particular treatments. Medical practitioners are not merely instruments of their patients; they exercise independent professional judgment. A court would very rarely compel a practitioner by mandatory injunction to render treatment that the practitioner reasonably considered futile or unwarranted.
On the application of section 72A
The central statutory question was whether futile treatment that might briefly prolong life falls within "the preservation of the health of the inmate." Brereton J acknowledged the sensitivity of deciding this without a contradictor, but noted the importance of giving medical practitioners reasonable certainty about their obligations. His Honour also noted that, if the issue were ever contested, the authority of the judgment should be discounted accordingly.
Brereton J held that treatment which is genuinely futile cannot be "necessary for the preservation of health." Although life and health are closely related, there is a meaningful distinction between treatment necessary to preserve health and treatment that merely prolongs life by hours or days without quality. Accordingly, section 72A did not require that CPR be administered to this patient in his particular circumstances.
Orders Made
- A declaration that, on the proper construction of section 72A of the Crimes (Administration of Sentences) Act 1999 (NSW), and in the circumstances of the patient, section 72A does not require that the patient be given cardiopulmonary resuscitation.
- Order that the declaration be entered forthwith.
(Note: The court declined to make the broader declarations sought in the summons, limiting its order to the statutory construction question that required resolution.)
Key Takeaways
- The Supreme Court confirmed that the parens patriae jurisdiction is not engaged merely because an incapacitated patient cannot consent to withholding treatment. The jurisdiction is primarily triggered where what is proposed would otherwise constitute an assault, such as administering invasive therapy without consent.
- Where unanimous medical opinion holds that further treatment would be futile, practitioners are not generally required to obtain court authorisation before withholding that treatment. A court would rarely issue a mandatory injunction compelling practitioners to provide treatment they reasonably regard as unwarranted.
- Under section 72A of the Crimes (Administration of Sentences) Act 1999 (NSW), the obligation to supply medical treatment extends to what is necessary for "the preservation of the health of the inmate." The Supreme Court held this does not extend to treatment that merely prolongs life by hours or days without quality.
- A distinction exists between treatment directed at preserving health and treatment directed solely at prolonging biological life. Futile treatment falls outside the statutory obligation in section 72A.
- The judgment was delivered without a contradictor, and Brereton J expressly noted that its authority on the section 72A point should be discounted if the issue arises in a contested proceeding.
Legislation and Cases Referenced
Legislation
- Crimes (Administration of Sentences) Act 1999 (NSW), ss 2A, 72A
Cases
- Isaac Messiha (By His Tutor Magdy Messiha) v South East Health [2004] NSWSC 1061
- Northbridge v Central Sydney Area Health Service (2000) 50 NSWLR 549
- Health & Community Services (NT), Department v JWB & SMB (Marion's case) (1992) 175 CLR 218