29/09/2016

An individual can normally consent or refuse any medical treatment.  However, this right could be taken away by the Courts in some extreme circumstances.

A Court’s ability to override the right of a person who lacks mental capacity to refuse medical treatment in extreme circumstances was highlighted in a NSW Supreme Court case earlier this year (Application of a local health district: Re a patient Fay).

In that case, a pregnant 19-year-old woman with intellectual problems, named Fay, was in intensive care at a hospital.  Her doctors held legitimate concerns that her medical condition was deteriorating at such a rate that it created a significant risk of permanent cerebral damage and even death for Fay if the pregnancy was allowed to progress.

She had signed a consent form granting authority for doctors to deliver the baby in the event that she suffered from specific medical events which were to cause impending death, however, the doctors recommended that the pregnancy be immediately terminated. They informed Fay that doing so would result in the death of her 22 week old foetus and she refused the medical intervention.  

Not wanting to wait for one of these specific events to occur, and in an attempt to save their patient’s life, her doctors made a request to the NSW Civil and Administrative Tribunal (“NCAT”) for permission to terminate the pregnancy. Their request was declined after the NCAT concluded that Fay had the requisite mental capacity to refuse the treatment.

The doctors urgently appealed the finding of the NCAT in the NSW Supreme Court as proceeding with the medical treatment without authority from the NCAT or the Supreme Court could have resulted in the doctors committing a criminal offense.

The turning point of the case was ascertaining whether Fay had the requisite mental capacity to exercise her right of self-determination, i.e. the right to consent to or refuse the proposed medical treatment.

The presumption is that an individual has mental capacity to consent to or refuse medical treatment unless the person claiming otherwise can prove it. 

Generally, a person will be deemed to lack mental capacity if it can be shown that they did not understand the consequences of their decision or are unable to weigh up the relevant consideration to make an informed decision. The level of influence or control from external third parties on the individual will also be a relevant factor in rebutting the presumption that they are mentally capable. To add to the complexity, there is a range of capacity, which means a person may have capacity to make certain decisions (e.g. sign a simple will) but not others (e.g. manage their financial affairs or decline medical treatment).

During the Court proceedings, it became clear that not only was Fay highly influenced by her mother, who held strong views about the termination, she also appeared to have a profound lack of understanding of the general nature and effect of the proposed medical treatment. On that basis, the Court came to the view that she was unable to grant consent to the intervention and made the order allowing the doctors to lawfully terminate the pregnancy immediately, effectively overriding Fay’s right to choose whether and when to receive medical treatment.

The power of state supreme courts and/or administrative tribunals to step in and give consent to certain medical treatments in respect of an individual who lacks capacity must exist in the relevant state legislation.  

In NSW the power is limited to “special medical treatments”, which include treatment that may render an individual permanently infertile (e.g. vasectomy and tubal occlusion) and treatment carried out for the purpose of terminating pregnancy (Reg 9 of the Guardianship Regulations 2016).  Similar legislative provisions are found in other States and Territories.

The Court also invoked its parens patriae jurisdiction, being its obligation to act in the manner of “a wise, affectionate and careful parent for the welfare of the person”. This discretion is generally only exercised by the Court in exceptional cases and with considerable caution.

For further information, please contact Townsends Business & Corporate Lawyers on (02) 8296 6222.