karen kumar - hicksons lawyers - withdrawal of treatment – what are the rights of clinicians...

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Withdrawal of Treatment – What are the Rights of

Clinicians versus the Rights of Patients and Family

Members

26 February 2016

25th Annual Medico Legal Congress

Address by Karen Kumar, Partner

Commercial in Confidence © Hicksons 2016 Slide 2

What we will cover

• When can clinicians legally withdraw active

treatment?

• What are the patient’s and family’s rights if they

disagree with the decision?

• How are any conflicts in these situations

resolved?

• Practical suggestions for resolving these

situations


Legal Issues

• Consent to treatment

• Refusal of treatment

• Legal incapacity of the patient

• Involvement of relatives in the decision making

process

• Use of the court to validate decisions made

regarding treatment


The Court’s Jurisdiction

• The Crown has the right to take care of the person when

they unable to care for themselves due to disability.

• It is part of the parens patriae jurisdiction.

• This jurisdiction of the Supreme Court extends to protection

of life and bodily integrity

• The court’s concern in such cases is to preserve life and

prevent the deterioration of the patient’s physical and

mental health


Are you required to treat patients at all

costs?

Application of Justice Health; Re A Patient [2011] NSWSC 432

• Unanimous medical opinion that treatment would be futile and that

continuing treatment would not be in the patient’s best interests

• Proposal involved withholding aggressive treatment to prolong life

and as such patient consent was not required

• ‘medical practitioners are not mere instruments of their patients, at

their patient’s behest, but are also expected to bring to their tasks

professional medical judgment’


Justice Health; Re A Patient

• No patient has a right to insist on a particular treatment

• The patient has a right to the medical practitioner using their

reasonable professional care in the interest’s of the patient’s

health and well being

• It would be a rare case where the court would order treatment be

given in circumstances where a doctor genuinely believed that

such treatment was not appropriate.


Messiha v South Eastern Health

• 75 y.o suffered an out of hospital asystolic cardiac arrest.

• Testing showed no realistic meaningful recovery of cerebral

function

• The family did not agree and an independent assessment of the

patient was carried out. This confirmed the prognostic views of the

treating doctor

• The medical evidence concluded that continued treatment in the

ICU was not justified on medical grounds


Messiha cont’d

• The court acknowledged that it must act in the best interests of the

patient

• Whilst the Court is not bound by medical opinion, even where

unanimous, decisions regarding appropriate treatment are

regarded to be principally for the expertise of medical practitioners

• The court found that the treatment was futile and withdrawal of the

treatment would only bring forward the inevitable

• Continuing treatment was not in the patient’s best wishes


Northridge v CSAHS [2000]

• 37 y.o heroin overdose, diagnosed with irreversible brain damage

• Patient contracted a chest infection

• The court found a lack of communication, premature diagnosis and

an absence of a recognised criteria for making a diagnosis of

‘vegetative state’

• The transfer of the patient to a transplant ward after treatment was

withdrawn created an apprehension of bias

• The hospital staff failed to take into proper account the

observations of relatives


Inquest into the death of Paulo Melo

• The Coroner looked into the circumstances surrounding the

withdrawal of treatment.

• Discussions occurred from the day of admission and thereafter for

10 days in relation to the poor prognosis and withdrawal of

ventilatory support

• The family were not accepting of this advice and therefore the

practitioners allowed further time to allow the family to come to

terms with the poor prognosis and the need to withdraw treatment

• The court heard that ventilation continued for approximately one

week beyond what the staff felt was appropriate to allow the family

time to accept the decision


Paulo Melo Inquest

• The Coroner would expect professional staff in such

circumstances to make considerable efforts to communicate

compassionately with the grieving family and be able to deal with a

degree of hostility

• He noted that there were multiple long family meetings and that the

hospital engaged social workers and chaplains early as well

securing additional expert involvement for the sake of family

• The Coroner concluded that the decision to withdraw ventilation

was reasonable based upon the medical evidence but was critical

of the 3 hour notice period given to the family


Cairns Hinterland Hospital and Health

Service v JT by JT's Guardian

• JT was a 37-year-old married father of two who suffered a severe

hypoxic injury secondary to diabetic ketoacidosis and cardiac

arrest. He was unconscious with his life being perpetuated by

percutaneous feeding

• Prior to this event JT had discussed with his wife the fact that if he

ended up as a vegetable he did not want to live

• All medical practitioners held a universal opinion that there was no

prospect of improvement and that JT would never regain the ability

to understand, interact or communicate, and that it was consistent

with good medical practice to withdraw his life-sustaining

supportive treatments


Cairns Hinterland Hospital and Health

Service v JT by JT's Guardian

• The applicant and its employees were concerned about the

prospect that the withdrawal of life-sustaining measures might

give rise to criminal responsibility

• The court found that if it was concluded that the invasive care

presently being administered was no longer in JT’s best interests

then it would logically follow that the court acting in the parens

patriae jurisdiction in his best interest would not be able to

consent on his behalf to the continuation of such care


Aintree University Hospitals NHS

Foundation Trust v James & Ors

• If the treatment is not in his best interests the court would not be

able to give its consent on his behalf and it would follow that, since

it would then be unlawful to give such treatment, its withholding or

withdrawal would be lawful and not in breach of any duty to the

patient

• In considering the best interests of a particular patient at a

particular time, decision makers had to consider the patient's

welfare in the widest sense, not just medical but social and

psychological


Aintree University Hospitals NHS

Foundation Trust v James & Ors

• The test to be applied is subjective, not objective, and decision-

makers have to try to put themselves in the place of the individual

patient and to ask what his attitude to the treatment would be, and

to that end should consult those who are looking after him or

interested in his welfare to ascertain his wishes, feelings, beliefs

and values in the things which were important to him

• Treatment should be regarded as futile and not in the patient's

best interests and futile if it has no benefit at all to him and no real

prospect of curing or palliation in a life-threatening condition from

which the patient was suffering


Re JS [2014] NSWSC 352

• JS, a 27-year-old male, since the age of 7 had been a quadriplegic.

In the absence of artificial ventilation it was anticipated that JS

almost certainly die. JS decided that he no longer wants to receive

life-sustaining treatments and had expressed a wish that on his

28th birthday he wanted ventilation withdrawn.

• A valid refusal may be based upon religious, or social grounds or

indeed upon no apparent rational ground and it is entitled to

respect regardless

• Capacity = comprehending and retaining information, which is

material to the decision in particular as to the consequences of the

decision or unable to use or weigh the information as part of the

process of making that decision


Re JS [2014] NSWSC 352

• The court concluded that JS had the capacity to make a decision to

refuse a continuation of ventilation and that this was freely given

and based on adequate information. Accordingly, assuming that

there was no change in JS's decision the court noted that the

hospital would be acting lawfully if they act in accordance with his

request to disconnecting from the mechanical ventilation and the

declaration was made to that effect

• X v Sydney Children's Hospital Network - the legal concept of

suicide, being the intentional taking up one's own life, is not

engaged in a case where medical assistance is refused, even in the

knowledge of certain death


Dealing with denial

• Explore patient understanding

• Use a hypothetical question to explore what is an important to the

patient whilst they are well

• Check for a ‘window’ in which to address a situation

• Do not force confrontation about denial otherwise it will lead to

psychological distress and further denial or alienation from

healthcare professionals

• Offer a referral for a second opinion if there is a lack of acceptance

that treatment is medically futile


Dealing with conflicts

• Identification of family discord as early as possible

• The holding of meetings on repeated occasions if needed with the

patient and family team members or caregivers to explore

concerns and try to increase understanding about the patient's

condition

• Allowing the patient and family time to come to terms with the

impending death of the patient

• Continually focusing on what is known about the patient's values

and preferences

• Explore and acknowledge the emotional issues and concerns of

the patient or caregiver that are not always expressed and may

result in communication barriers


Dealing with conflicts

• If possible, negotiate with a family spokesperson who can be

involved in medical decisions and communication with the family

• Preferably have someone with you and document all discussions

clearly in the notes

• Openly negotiate with patients and family members to try and

reach a mutually acceptable solution

• Recognise limitations for example, you are unlikely to be able to

resolve any long-standing family dysfunction

• When these efforts are not successful and the conflict is affecting

the patient care consider arranging a second opinion, a skilled

communicator to facilitate a patient care conference or the use of a

patient advocate if there are unresolved issues between healthcare

professionals and the family or patient


What can we learn from these cases?

• There is a need for good communication with colleagues and

relatives

• Diagnosis of a permanent vegetative state should not be rushed

• Seek second opinions where there is doubt

• Be careful of creating an apprehension of bias

• Whilst patients do not have a right to any particular treatment, the

process of withdrawing treatment or refusing to treat must be in

the patient’s best interests and based upon the exercise of

reasonable care


Resources

• NSW Health Guidelines for End-of-Life care and decision making

• College of Intensive Care Medicine – Statement on withholding

and withdrawing medical treatment

• MJA Clinical practice guidelines for communicating prognosis

and end-of-life issues with adults in the advances stages of a life

limiting illness, and their caregivers (2007)



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Hicksons Lawyers, Level 32, 2 Park Street, Sydney NSW 2000 Australia DX 309 Sydney ABN 58 215 418 381 t +61 2 9293 5311 f +61 2 9264 4790 www.hicksons.com.au Liability limited by a Scheme approved under Professional Standards Legislation

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This was a presentation by Karen Kumar of Hicksons.

If you require any further information, please contact:

Karen Kumar, Partner

t +61 2 9293 5452

f +61 2 9264 4790

e [email protected]