karen kumar - hicksons lawyers - withdrawal of treatment – what are the rights of clinicians...
TRANSCRIPT
This address represents a brief summary of the law relating to the issues raised and should not be relied on as a substitute for professional
advice. Specific legal advice should always be sought in relation to any particular circumstances and no liability will be accepted for any
losses incurred as a result of reliance on this address by those relying solely on this address.
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
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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
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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
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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
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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’
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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.
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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)
This address represents a brief summary of the law relating to the issues raised and should not be relied on as a substitute for professional
advice. Specific legal advice should always be sought in relation to any particular circumstances and no liability will be accepted for any
losses incurred as a result of reliance on this address by those relying solely on this address.
This address represents a brief summary of the law relating to the issues raised and should not be relied on as a substitute for professional
advice. Specific legal advice should always be sought in relation to any particular circumstances and no liability will be accepted for any
losses incurred as a result of reliance on this address/document/paper [etc] by those relying solely on this address/document/paper [etc]
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
SYDNEY · NEWCASTLE · CANBERRA · MELBOURNE · BRISBANE
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