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Chapter 11 - The Development of the Law Relating to Medical Treatment of Incapable People

Contributed by Nick O’Neill with input from Carmelle Peisah and current to 30 April 2021.

11.1 Introduction

Australia and the common law world generally are still formulating their approach to substitute consent to medical and dental treatment, advance directives, end of life decision-making and similar issues. Because of advances in public health, nutrition, standards of living and medical science, people can live for many years after losing decision-making capacity or lead a long life without ever having had decision-making capacity. With projected increases in dementia(1), there will be an increasing number of people who have lost capacity to make decisions about their own medical treatment. In addition to these advances, the late 19th century and the 20th century saw the growth of societal expectations of patient autonomy, informed decision-making and control over the dying process.

The issues that are thrown up by these developments require responses from the community, health care professionals, lawyers and ethicists. In Australia, all States and Territories have some legislation to deal with some of these issues. However, the common law applies where there is either no relevant legislation or gaps in that legislation. The common law has continued to develop in this field as applications are made to the courts and the judges deal with them, often as part of their parens patriae jurisdiction, which is sometimes described as inherent jurisdiction.

This has occurred particularly in the United States of America, but also in the United Kingdom and Canada. This chapter will refer to key aspects of the development of the common law in those countries. The relevant developments in the Australian common law and legislation, and in health policies and medical treatment practices, are addressed in the chapters that deal with substitute consent to medical and dental treatment, advance directives and care and decision-making at the end of life.

11.2 The common law develops

11.2.1 The recognition of patient autonomy

As Rich shows, by the early 20th century the requirement of consent to medical treatment based on patient autonomy was established in the common law of the United States of America, based on judicial statements such as:

Under a free government, at least, the free citizen’s first and greatest right … the right to inviolability of the person …necessarily forbids a physician or surgeon, no matter how skillful or eminent, … to violate, without permission, the bodily integrity of his patient….


The patient must be the final arbiter as to whether he will take his chances with the operation, or take his chances without it. Such is the natural right of the individual, which the law recognizes as a legal one.(2)

The most famous judicial statement of patient autonomy which shows the right of a competent adult to refuse medical treatment was made by Cardozo J in 1914 when in Schloendorff v Society of New York Hospital he said:
Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent commits an assault, for which he is liable in damages.(3)

Rich goes on to trace the development of the requirement of consent into a requirement of informed consent and of respect for patient autonomy into including respect for patient prospective autonomy in the form of advance directives.(4) While the courts were beginning to recognize advance directives and order that they be given effect to, they continued to support the right of competent people to refuse treatment, even without requiring them to give a reason for doing so.

The 2009 Australian cases confirming that the (Australian) common law recognises a competent adult’s right to autonomy or self-determination are dealt with below at 11.4.

11.2.2 The emergence of advance directives

The credit for proposing formal advance directives is given to an Illinois lawyer, Luis Kutner.(5) In 1965, in an article in the Indiana Law Review, he noted that the law recognises that adult patients have the right to refuse to be treated, even when “in extremis” provided they have the capacity to give or refuse consent to treatment.(6) He went on to note that when patients undergo surgery or other radical treatment in hospitals, they are required to sign a statement indicating their consent to the treatment. He suggested that competent patients append to such a document a statement saying that if their condition became incurable or they go into a permanently vegetative state, their consent to further treatment would be terminated. He noted that if either of those events happened, the result would be that the treating doctors would be precluded from prescribing further surgery, radiation, drugs or the running of resuscitating and other machinery and that the patients would be permitted to die by virtue of the doctors’ inaction.(7) He then went on to describe what should be included in such a document, how it should be formalised and how it should be dealt with by the hospital to which it was produced.(8)

The claimed first use of a “formal” living will, which was subsequently upheld by the courts, was in Florida in 1981 when a terminally ill man was taken to the John F Kennedy Memorial Hospital in Florida.(9) Within two days of being admitted to the hospital, the man was unable to breathe on his own and doctors placed him on a ventilator. His doctor told his wife that he had no hope of recovery. She then handed over a paper entitled “Mercy Will and Last Testament” written out and signed by her husband in the presence of two witnesses six years before. As recently as two months before he entered the hospital, his wife had promised him that should he be hospitalised, she would make his “mercy will” part of his medical record. She was appointed his guardian by the probate court and immediately asked the hospital to turn off all life support systems. The hospital then sought a declaratory judgment as to its obligations in these circumstances. The man died but the court was willing to hear the case.

In 1984 the Supreme Court of Florida recognised that “terminally incompetent persons being sustained only through use of extraordinary artificial means have the same right to refuse to be held on the threshold of death as terminally ill competent people”.(10) The court also stated that this right could be exercised by the person’s close relatives or an appointed guardian and that the decision to cease the use of artificial life supports should normally be made in the patient-doctor-family relationship.(11) The court continued:

Doctors, in consultation with close family members are in the best position to make these decisions. The focal point of such decisions should be whether there is a reasonable medical expectation of the patient’s return to cognitive life as distinguished from the forced continuance of a vegetative existence.(12)

While John F Kennedy Inc v Bludworth may have been the first case in which a “formal” living will made by a patient was a crucial factor in the decision to terminate artificial life support, the court did not rely on the living will itself.(13) Instead, the court applied the common law “doctrine” of “substituted judgment” stating that:

Under this doctrine close family members or legal guardians substitute their judgment for what they believe the terminally incompetent persons, if competent, would have done under these circumstances. If such a person, while competent, had executed a so-called “living” or “mercy” will, that will would be persuasive evidence of that incompetent person’s intention and it should be given great weight by the person or persons who substitute their judgment on behalf of the terminally ill incompetent.(14)

The court held that the right of a patient who is in an irreversibly comatose and essentially vegetative state to refuse extraordinary life-sustaining measures may be exercised by either their close family members or by a guardian of the person of the patient appointed by a court with appropriate jurisdiction. There was no need to obtain the consent of a court before terminating such treatment.(15)

In both Canada and the United Kingdom the courts began to recognise less formal kinds of advance directives. In June 1979 in Canada, Mrs Malette was involved in a motor vehicle accident which killed her husband. She was rushed to hospital arriving semi-conscious and bleeding. An emergency department nurse found Mrs Malette’s purse which contained a card which stated: “No Blood Transfusion. As one of Jehovah’s witnesses with firm religious convictions, I request that no blood or blood products be administered to me in any circumstances….”.Even though he was informed of the card and what it said, Dr Shulman administered blood to her. She recovered from her injuries and sued Dr Shulman, the hospital and others for damages for battery. The Ontario High Court, in 1987, found Dr Shulman guilty of battery and awarded Mrs Malette damages of $20,000 for mental distress against him only.(16)

The matter went on appeal to the Ontario Court of Appeal. That Court dismissed the appeal in 1990 noting that while there was a state interest in protecting and preserving the lives and health of citizens which could override an individual’s right to self-determination, for example to require a person to receive treatment to eliminate a health threat to the community. However, normally that interest gave way to a competent patient’s stronger interest in directing the course of their own lives.(17) The Court noted that Mrs Malette’s rejection of blood transfusions was based on the firm belief held by Jehovah’s Witnesses, founded on their interpretation of the Scriptures, that the acceptance of blood will result in a forfeiture of their opportunity for resurrection and eternal salvation and went on to state that, Mrs Malette “was entitled to reject in advance of any emergency a medical procedure inimical to her religious values”.(18)

The 1992 decision of the English Court of Appeal, Re T, appears to have been accepted as authority for the proposition that the English common law recognises advance directives, or at least anticipatory refusals of medical treatment.(19) These are treated as binding on doctors if they are clearly established, applicable to the current circumstances and made without undue pressure from others.(20) However, it does not follow that if a person makes an advance directive to the effect that they are to be kept alive through active treatment and be given nutrition and hydration until they die of natural causes, that as a matter of law they must be kept alive. In 2005 the Court of Appeal dealt with a case in which it was submitted that, if a patient had made an advance directive that he was to be kept alive, such a directive had to be complied with as a matter of law. The Court responded referring to the Bland Case:

While a number of their Lordships indicated that an advance directive that the patient should not be kept alive in a PVS should be respected, we do not read that decision as requiring such a patient to be kept alive simply because he has made an advance directive to that effect.(21)

11.2.3 The right of a competent person to refuse medical treatment

In the 1992 case, Re T, the English Court of Appeal asserted the common law right of every adult with capacity to decide whether or not to accept medical treatment.(22) Butler-Sloss LJ stated:

A man or woman of full age and sound understanding may choose to reject medical advice and medical or surgical treatment either partially or in its entirety. A decision to refuse medical treatment by a patient capable of making the decision does not have to be sensible, rational or well considered.(23)

Lord Donaldson MR put the matter as follows:

This right of choice is not limited to decisions which others might regard as sensible. It exists notwithstanding that the reasons for making the choice are rational, irrational, unknown or even non-existent.(24)

The case involved a 20 year old pregnant woman who had been brought up as a Jehovah’s Witness and was subsequently injured in a car accident. On admission to hospital after spending time alone with her mother she refused a blood transfusion. After giving birth to a stillborn child, her condition became critical and her father and boyfriend applied for a court order that it would not be unlawful to administer a transfusion without her consent. The court held that the effect of her condition, together with misinformation and her mother’s influence, rendered her refusal of consent ineffective. Notwithstanding the outcome for patient T, several principles of law relating to informed consent and advance treatment were affirmed in this case.(25)

Lord Donaldson MR stated:

Doctors faced with a refusal of consent have to give very careful and detailed consideration to the patient’s capacity to decide at the time when the decision was made…. What matters is that the doctors should consider whether at that time he had a capacity which was commensurate with the gravity of the decision which he purported to make. The more serious the decision, the greater the capacity required. If the patient had the requisite capacity, they are bound by this decision. If not, they are free to treat him in what they believe to be his best interests.(26)

In that case Lord Donaldson also noted a view in the medical profession that, even in emergency circumstances, the next of kin should be asked to consent to medical treatment on behalf of the patient if the patient was incapable of giving a valid consent to the treatment. He said; “This is a misconception because the next of kin has no legal right to consent or refuse consent."(27) However, he went on to suggest that it was appropriate to wait for the arrival of the next of kin in circumstances in which the patient would not be adversely affected by the delay, because:

[C]ontact with the next of kin may reveal that the patient has made an anticipatory choice which, if clearly established and applicable in the circumstances – two big ‘ifs’ – would bind the (medical) practitioner.(28)

Also in 1992, in Canada a 25 year old woman suffering from Guillian-Barre syndrome, an incurable neurological disorder which left her unable to move and able to breathe only through the assistance of a respirator, was granted an injunction requiring the hospital and her doctors to comply with her decision to refuse treatment.(29)

In the English High Court’s Family Division in 1993, in the case Re C, a man was held to meet the test for capacity to make a decision about whether or not to consent to the amputation of one of his legs because of gangrene, despite his paranoid schizophrenia. The court was prepared to make a declaration that he was capable of refusing the proposed treatment beyond the present to future circumstances.(30)

In 2002 the then President of the Family Division, Dame Elizabeth Butler-Sloss, gave guidance on the right of a competent person to refuse medical treatment. The case involved a 41 year old woman whose decision-making capacity was beyond question.(31) She suffered a haemorrhage of the spinal column in her neck and became paralysed from the neck down and entirely dependent on a ventilator. She formally advised that she wanted artificial ventilation removed even though she realised that this would almost certainly result in her death. The President upheld her request and made a number of points as guidance including the following:

(i) There is a presumption that a patient has the mental capacity to make decisions whether to consent to or refuse medical or surgical treatment offered to him/her.

(ii) If mental capacity is not an issue and the patient, having been given the relevant information and offered available options, chooses to refuse treatment, that decision has to be respected by the doctors. Considerations that the best interests of the patient would indicate that the decision should be to consent to the treatment are irrelevant


(viii) If there is no disagreement about competence but the doctors are for any reason unable to carry out the wishes of the patient, their duty is to find other doctors who will do so.(32)

To summarise, these cases show the common law recognising the right of competent adults to refuse continuing treatment, including life maintaining treatment, without having to explain why, as well as their right to make advance directives in the form of verbal anticipatory refusals and for “blood cards” sometimes carried by Jehovah’s Witnesses to be recognized and given effect to.

This issue was dealt with in an Australian case in 2009. See below at 11. 4.

11.2.4 The rights of incompetent persons to refuse life-sustaining medical treatment – how to give effect to this right

In the 1970s in the US Karen Quinlan, who at 21 lost consciousness and went into a persistent vegetative state, was kept alive for years through artificial nutrition and hydration despite the efforts of her parents to be allowed to let her die. Her fate led to a demand for legislation, which many States enacted, to allow advance directives.(33)

The Quinlan Case did not go beyond the New Jersey Supreme Court; however the case of Nancy Cruzan did. When driving around midnight in the Missouri in January 1983, the recently divorced Nancy Cruzan lost control of her car and finished up face-down in a water-filled ditch. Her heart had stopped before she received assistance from the paramedics who restarted her heart. She was in a persistent vegetative state from that time until her death seven years later. Her existence was sustained by a feeding tube. Her parents wanted the feeding tube removed and permission was granted by the Missouri probate court. However, the Missouri Supreme Court held that before medical support could be withdrawn from an incompetent person there had to be clear and convincing evidence of their wish for this to happen. This is a higher standard of proof than the usual civil standard of the balance of probabilities (called in the US the preponderance of the evidence). As the Court held that the evidence in this case did not meet that higher standard, Ms Cruzan’s feeding tube could not be removed.

The matter went to the US Supreme Court on the question of whether the US Constitution forbids a State from requiring clear and convincing evidence of a person’s expressed decision, while competent, to have hydration and nutrition withdrawn in such a way as to cause death.(34) The Supreme Court, by a majority of five to four, held that the Constitution did not prohibit this court imposed requirement. The majority referred to the state interest in protection and preservation of human life as a basis for making this heightened evidentiary requirement legitimate.(35)

In dissent Brennan J noted the majority’s view that an erroneous decision to terminate life-support is irrevocable while an erroneous decision not to terminate results in the maintenance of the status quo and continued:

But from the point of view of the patient, an erroneous decision to terminate artificial nutrition and hydration, to be sure, will lead to the failure of the last remnant of physiological life, the brain stem, and result in complete brain death. An erroneous decision not to terminate life-support, however robs a patient of the very qualities protected by the right to avoid unwanted medical treatment. His own degraded existence is perpetuated: his family’s suffering is perpetuated: the memory he leaves behind becomes more and more distorted.(36)

Five months after the Supreme Court’s decision, Ms Cruzan’s feeding tube was removed because friends of hers who knew her by her married name, Nancy Davis, came forward and offered new evidence which State court held met the clear and convincing standard of proof.(37)

It has been noted that the Supreme Court in the Cruzan Case ignored doctors. It never discussed the doctor-patient relationship or whether it matters if the patient’s doctor had a long-standing relationship with them and understood what treatment the patient wanted.(38)

Also in that case one of the majority, O’Connor J, wrote a concurring judgment in which she specifically noted that:

[T]he liberty guaranteed by the Due Process Clause must protect, if it protects anything, an individual’s deeply personal decision to reject medical treatment, including artificial delivery of food and water.(39)

She went on to suggest that there was a duty in the States:

[T]o protect the patient’s liberty interest in refusing treatment. Few individuals provide explicit oral or written instructions regarding their intent to refuse medical treatment should they become incompetent. States which decline to consider any evidence other than such instructions may frequently fail to honour a patient’s intent.(40)

After the false start in the Quinlan and Cruzan cases, the US courts have established and repeatedly restated that the right of a person to refuse medical treatment is not lost if they lose their capacity to give a valid consent to their own medical treatment and were thus considered incompetent to give or refuse consent to such treatment.(41) The assertion of that right, particularly when the treatment is life-sustaining, gives rise to a series of difficult questions that the US courts have dealt with. These include, who can give consent to the carrying out of or to the refusal of such treatment? Do the substitute decision-makers have to carry out the wishes of the person they are making the substitute decision for? If so, what degree of certainty do they have to have about the person’s wishes before they can act? Can they make the decision in the person’s best interests? If so what degree of certainty do they have to have about the person’s best interests before they make the decision? Are there differences in the substitute’s decision-making options arising from whether the person is comatose or in a persistent vegetative state or whether the person has some degree consciousness? A range of US cases deal with these and other related issues. The decisions made in these cases are not necessarily consistent with one another, nor do they reflect all relevant considerations as they result from court hearings in which non-legal perspectives on how to deal with the matters to be decided were given little account. Nevertheless, they raise issues and considerations that are relevant to any discussion of how the statute and judge-make law in Australia should continue to develop in this ethically difficult field.

As already noted, by 1984 in the USA, the Supreme Court of Florida at least had recognized that the right of a patient who is in an irreversibly comatose and essentially vegetative state to refuse extraordinary life-sustaining measures could be exercised by either their close family members or by a guardian of the person of the patient appointed by a court with appropriate jurisdiction. There was no need to obtain the consent of a court before terminating such treatment.(42)

In 1985, at the age of 85, Mrs Browning executed a declaration stating that if she had a terminal condition from which there could be no recovery she directed that life-prolonging procedures be withheld or withdrawn. In addition she did not want nutrition or hydration provided by gastric tube or intravenously. A year later she suffered a stroke involving a massive brain haemorrhage. As she was unable to swallow, a gastronomy (PEG) tube was inserted. Mrs Browning went to a nursing home where she was bedridden and required total care. Her only relative, an elderly woman herself, was appointed her guardian. Almost two years after Mrs Browning’s stoke her guardian applied for a court order to terminate Mrs Browning’s feeding based on her declaration. There was also evidence of Mrs Browning expressing views consistent with her declaration. The medical evidence was that her brain damage was major and permanent and that there was virtually no chance of recovery. The Supreme Court of Florida took the view that before the guardian could exercise Mrs Browning’s right to forgo treatment, the guardian had to be able to support that decision with clear and convincing evidence that satisfied the following conditions that the guardian:
  1. was satisfied that Mrs Browning had executed her declaration knowingly, willingly and without undue influence and that the evidence of her orally expressed views was reliable;
  2. was assured that Mrs Browning did not have a reasonable probability of recovering competency so that she could exercise her right to refuse treatment; and
  3. considered any limitations and conditions in the declaration or given orally by Mrs Browning and that they had been satisfied.(43)

In 1991 the Supreme Court of Michigan dealt with the case of a Mr Martin.(44) Mr Martin had a serious motor vehicle accident which left him unable to walk or talk. He had minimal cognition and essentially no ability to communicate. He had a colostomy bag for defecation and had to be fed through a PEG tube. Five years after his accident, when he was being treated for an obstructed bowel, his wife approached the hospital’s bioethics committee. After consultation and consideration the committee reported that withdrawal of the PEG tube was both medically and ethically appropriate. Mrs Martin sought and obtained court authority to remove the tube but Mr Martin’s mother and sister took the matter up.

The Supreme Court of Michigan held that there had to be clear and convincing evidence that the person would have refused the treatment in the circumstances involved. The evidence had to be so clear, direct, weighty and convincing as to enable the fact finder to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue.(45) The majority took the view that while Mr Martin said he did not wish to live like a vegetable, he was not in vegetative state and was “not suffering from the type of incapacitation referenced in his expression of a desire not to continue life-sustaining treatment”.(46)

This case represents perhaps the highest level of certainty about the evidence required under the clear and convincing evidence test. The fact that Mr Martin was not formally in a persistent vegetative state seems to have been relevant to the majority even though, as the dissenting judge pointed out, the bioethics committee had concluded that the persistence of Mr Martin’s condition and his level of functioning was the equivalent of being in a persistent vegetative state for the purposes of considering removing nutrition support.(47) It was clear that Mr Martin was totally dependent on others for all activities of daily living and all other aspects of his life.

The Supreme Court of Michigan was not willing to apply a best interests test on the facts of this case noting that such a test lets others make determinations about a patient’s quality of life, “thereby undermining the foundation of self-determination and inviolability of the person upon which the right to refuse medical treatment stands”.(48) The Court went on to note a distinction between a best interests test grounded in the state’s parens patriae power and the subjective test based on the common law right to self-determination. The Court suggested that the best interests test had been used in cases in which the patient had been comatose or in a persistent vegetative which the majority considered was not the case in relation to Mr Martin.(49)

In 2001, the Supreme Court of California made a similar decision in similar circumstances and made use of the decision in In re Martin.(50) In that case Mr Wendland suffered brain injuries in a motor vehicle accident. Two years later his wife, who had been appointed his conservator, requested authority to withhold artificial nutrition and hydration. The evidence showed that Mr Wendland had “severe cognitive impairments, maladaptive behaviour characterised by agitation, aggressiveness and non-compliance, severe paralysis on the right and moderate paralysis on the left, severely impaired communication without compensatory augmentative communication system, severe swallowing dysfunction, dependent on enteric feeding for nutrition and hydration, incontinence of bowel and bladder, moderate spasticity, mild to moderate contractures, general dysphoria, recurrent medical illnesses, including pneumonia, bladder infections, sinusitis and some dental issues”.

Mr Wendland’s wife, brother and daughter gave evidence of statements he had made about his attitude towards life-sustaining health care prior to his accident. The trial court found that Mrs Wendland, as conservator, had not shown by clear and convincing evidence that Mr Wendland, who was neither in a permanent vegetative state nor suffering from a terminal illness, would, under the circumstances, want to die.(51) The Supreme Court of California upheld this finding. It went on to note that In re Martin “is most like the case before us” and subsequently to note that the clear and convincing evidence test “requires a finding of high probability, based on evidence so clear as to leave no substantial doubt and sufficiently strong to command the unhesitating assent of every reasonable mind”.(52)

The trial court also found that Mrs Wendland had not established that the withdrawal of artificially delivered nutrition and hydration was commensurate with her husband’s best interests. The Supreme Court of California held that a conservator had to prove by clear and convincing evidence that it was in the best interests of a conscious but incompetent person to terminate nutrition and hydration artificially delivered to them before the court would give a conservator permission to do so.(53) The court was at pains to point out that its decision was limited to those who although incompetent were conscious and went on to state that the decision, “does not affect permanently unconscious patients, including those who are comatose or in a persistent vegetative state”.(54)

Perhaps the best known case dealing with these issues is that about Terri Schiavo who in 1990, at the age of 26, experienced respiratory and cardiac arrest at home and spent the next 15 years in a persistent vegetative state until her death in 2005. Her husband, Michael, was appointed her guardian. In 1998 he applied to the circuit court in Florida to remove the PEG tube through which she received nutrition and hydration. His application was opposed by Mrs Schiavo’s parents, Mr and Mrs Schindler. Judge Greer of the circuit court applied the tests laid down by the Supreme Court of Florida in the case In the estate of Browning.(55) He found that beyond all doubt that Mrs Schiavo was in a persistent vegetative state. Mrs Schiavo made no written declarations about how she wanted to be treated if she fell into a persistent vegetative state. Judge Greer heard the evidence of five witnesses. The evidence of two of these, including Mrs Schindler, the judge found related to statements she made at the age of 11 or 12 years and did not truly reflect her intention about treatment when in a persistent vegetative state. However he did find that she had made statements to her husband, brother-in-law and sister-in-law which he found to be both creditable and reliable and amounting to clear and convincing evidence that she would not want life-sustaining treatment if she went into a persistent vegetative state. As a consequence, Judge Greer ordered that Mr Schiavo could direct that the artificial life support to his wife be discontinued.(56)

This decision led to 14 appeals and numerous motions, petitions and hearings in the Florida courts, five suits in the US Federal District Court, Florida legislation that was struck down as unconstitutional for breaching the strict separation of powers in the Florida Constitution, legislation being rushed through the US Congress, refusal by the US Supreme Court to become involved on four different occasions and the intervention of the Governor of Florida, Jeb Bush, and his brother, the President of the United States of America, George W Bush. This was despite the fact that, as Gostin has pointed out, the Federal and State courts in the USA have reached a broad consensus on death and dying since the seminal cases of Quinlan and Cruzan.(57) All Greer J did was apply the established law in Florida and took account of evidence that he considered was creditable and reliable and met the clear and convincing evidence test to find that Mrs Schiavo would not have wanted life-sustaining treatment if she went into a persistent vegetative state and then made the appropriate consequential orders.(58)

11.2.5 Removal of life-sustaining treatment for those who have never been competent or who have never expressed views concerning such treatment

In 1992 the Supreme Court of Wisconsin had dealt with the case of a person in a persistent vegetative state who had never expressed views about life-sustaining treatment and who may never have been competent to do so.(59) Even though the man in question had died, the court dealt with the matter noting that the issues it raised were of great public importance and were likely to arise again. The court saw an obligation to guide trial courts and to avoid uncertainty.(60)

The facts upon which the case was decided were that in May 1989 LW was placed under the guardianship of a non-profit organization. He was a 79 year old man who had a long history of undifferentiated schizophrenia. He had been institutionalized since 1951. He had no close relatives or friends and had never indicated his wishes concerning life-sustaining medical treatment to anyone. The evidence indicated that he may never have been competent. Six days after being placed under guardianship, LW had a cardiac arrest in a nursing home and went to hospital. His treating doctors informed his guardian that LW was in a chronic, persistent vegetative state and advised that if LW did not improve in the following four weeks, they would ask the guardian to consent to the withdrawal of all life-sustaining medical treatment, including all artificial nutrition and hydration, thus occasion LW’s death.(61) A week after LW’s cardiac arrest, his guardian petitioned the circuit court for a declaratory judgment to determine whether the guardian or the court could consent to such withdrawal. The trial court held that a guardian has authority to consent to the withdrawal of all life-sustaining treatment, including artificial nutrition and hydration, without prior court order or approval, if the guardian determines that withdrawal is in the person’s best interests. The matter was appealed to the Supreme Court of Wisconsin which upheld the trial court’s decision, but added to it. LW died in February 1991 while the appeal was still pending.

The Supreme Court of Wisconsin specifically disagreed with the argument that a court must require clear and convincing evidence of an individual’s wishes while competent concerning life-sustaining care before such treatment could be withheld. The court noted that:

Relatively few individuals provide explicit written or oral instructions concerning their treatment preferences should they become incompetent. The reasons for this are undoubtedly myriad: ignorance, superstition, carelessness, sloth, procrastination or the simple refusal to believe it could happen to oneself. This failure to act is not a decision to accept all treatment, nor should society’s increasing ability to delay the dying process make it one. To adopt a clear and convincing standard would doom many individuals to a prolonged vegetative state sustained in a life form by unwanted, perhaps detrimental, means that are contrary to the person’s best interest.(62)

The court stated that in some circumstances it may well be that in the person’s best interests to have treatment withdrawn or withheld and continued:

A dignified and natural death may outweigh the interest of maintaining a physiological life as long as medically possible. Therefore, where it is in the best interests of an incompetent person in a persistent vegetative state to refuse life-sustaining medical treatment, his or her right to refuse must be exercised by a surrogate decision-maker.(63)

The court refused to adopt a substituted judgment test when an incompetent’s right to refuse treatment is to be exercised noting that:

In this case, where LW did not execute a living will or power of attorney for health care instrument, and never expressed his wishes regarding life-sustaining medical treatment, and in all probability never had the competency to do so, the guardian must decide whether it is in the patient’s best interests to have life-sustaining medical treatment withheld or withdrawn.(64)

The court pointed out that unlike the substituted judgment standard which necessarily involves consideration of a person’s past wishes, values, feelings and beliefs, the best interests standard focuses solely on what is the currently in the person’s best interests.(65)

The court then went on to set out its specific guidance on the matter. The majority stated:

In conclusion then we hold that a guardian may consent to the withholding or withdrawal of life-sustaining medical treatment on behalf of one who has never been competent, or a once competent person whose conduct was never of a kind from which one could draw a reasonable inference upon which to make a substituted judgment when:
  1. The incompetent patient’s attending physician, together with two independent neurologists or physicians, determine with reasonable medical certainty that the patient is in a persistent vegetative state and has no reasonable chance of recovery to a cognitive and sentient life; and
  2. The guardian determines in good faith that the withholding or withdrawal of treatment is in the ward’s best interests, according to the objective factors outlined below.
In making the best interests determination, the guardian must begin with a presumption that continued life is in the best interests of the ward. Whether that presumption may be overcome depends on a good faith assessment by the guardian of several objective factors. The objective factors the guardian may consider include:

The degree of humiliation, dependence and loss of dignity resulting from the condition and treatment; the various treatment options; and the risks, side effects, and benefits of each of these options.(66)

Steinmetz J dissented on a range of grounds including that the case was moot because LW had died, the withholding of life-sustaining health care should be decided by the legislature following significant input and that LW was diagnosed as being in a persistent vegetative state within four weeks of his cardiac arrest when for accuracy such a diagnosis should not be made in less than three months.(67)

11.2.6 A summary of the US common law

The US common law is contributed to not only by the US Supreme Court and the other Federal courts but also the Supreme and other courts of the 50 states. In addition the US Constitution and the constitutions of the States and relevant legislation all have an impact on the shape of that common law. Nevertheless, the following matters appear to be key elements in the broad consensus about this area of the common law referred to by Gostin.(68)
  1. A person’s right to refuse medical treatment continues even when the person becomes incapable of exercising that right themselves. Others may exercise that right on their behalf, subject to them being satisfied as to certain matters by clear and convincing evidence.
  2. The matters they have to be satisfied about to that level of proof by creditable and reliable evidence are:
    1. that the incapable person, by making an advance directive or other formal declaration, or through informal statements has expressed views about how they would like to be treated in certain situations. If these expressions of view can be proved when one of those situations arises, then their views will be given effect to through the substituted judgment of others, including court appointed guardians. Life-sustaining treatment could be withheld or withdrawn in these circumstances.
    2. if the person has not expressed views or has not been capable of expressing views, then others may make the decision that it is not in the person’s best interests for life-sustaining treatment to continue. However, they cannot do this unless they are also satisfied by clear and convincing evidence that;
      1. the person’s attending physician, together with two independent neurologists or physicians, determine with reasonable medical certainty that the person is in a persistent vegetative state and has no reasonable chance of recovery to a cognitive and sentient life; and
      2. the guardian determines in good faith that the withholding or withdrawal of treatment is in the person’s best interests, according to the objective factors including the degree of humiliation, dependence and loss of dignity resulting from the condition and treatment; the various treatment options; and the risks, side effects, and benefits of each of these options.
  3. There appears to be a difference in attitude as to whether life-sustaining treatment can be withheld or withdrawn depending on whether the person is comatose or in a persistent vegetative state, or has a form of consciousness. There is a greater reluctance in the US courts to allow treatment to be withheld or withdrawn if the person has some level of consciousness.(69)
  4. In the US these principles may be applied without the need for a court order. It is assumed that they are regularly applied where family members, any significant others and treating doctors all agree that life-sustaining treatment be withdrawn. Where there are differences of view among family members, as a number of the cases show, the courts can be approached to hear the evidence and arguments, determine the facts and make appropriate orders arising from their findings.

11.2.7 The English common law

The common law in England and elsewhere in the United Kingdom has developed some different approaches and rules from those developed in the USA. The key case in English law is Airedale NHS Trust v Bland which, like the Quinlan and Cruzan cases, arose out of a tragedy.(70) The “best interests” test and those in a persistent vegetative state

Anthony Bland was 17 when he was seriously injured in the collapse of the stand at the Hillsborough soccer ground in April 1989. He went into a persistent vegetative state. Soon medical opinion was unanimous that there was no hope of any improvement in his condition or of recovery. Unsurprisingly, Anthony Bland had not indicated his wishes should he find himself in this condition. In 1992, with the support of Anthony Bland’s family, the consultant in charge of his case and independent physicians, the Airedale NHS Trust applied to the High Court of Justice in England for a declaration that it was lawful to discontinue life-sustaining treatment to him.

The matter went quickly from the Family Division to the Court of Appeal and on to the House of Lords which, in February 1993, took the view that the object of medical treatment and care was to benefit the patient. However, because he was in a persistent vegetative state, there was no benefit to Anthony Bland. Also, because the principle of the sanctity of life was not absolute, treatment to which Anthony Bland had not consented could be terminated. The substituted judgment approach used in the US was rejected as not part of English law and the best interests test was used to determine whether or not to make a declaration that the withdrawal of treatment was lawful.(71) The House of Lords also stated that until a body of law and practice had been built up, applications should be made to the High Court to obtain approval to withdraw treatment. This case was followed in Scotland.(72)

The approval of the Family Division of the High Court has to be sought by way of an application for a declaration. This is because, in 1990, the House of Lords decided that the parens patriae jurisdiction of the High Court had been swept away by legislation and the revocation of the relevant royal warrant.(73) This is not a problem in Australia. As has been noted in Chapter 8.2 and elsewhere in Chapter 8, the parens patriae jurisdiction can be exercised by the State and Territory Supreme Courts in Australia to deal with matters relating to incompetent adults.

However in a 2005 case, the Court of Appeal noted that each year approximately 50,000 patients are admitted to intensive care units in the United Kingdom and of those 30% died in the unit or on the wards before the hospital discharge. Most died because treatment was withdrawn or limited, albeit the circumstances where clinicians concluded that such treatment was likely merely to prolong the process of dying. The court also noted that there is not always agreement on the part of all concerned as to the withdrawal of treatment and that was hardly surprising as grief stricken relatives may not be able to accept that the patient is beyond saving (because they are dying). The Court of Appeal noted that if the criteria for bringing matters to court set out in the judgment appealed from were upheld approximately 10 applications per day would have to be made to the courts for declarations that withholding or withdrawing treatment in particular cases would be lawful.(74)On this question the court concluded that:

Good practice may require medical practitioners to seek such a declaration where the legality of proposed treatment is in doubt. This is not, however, something that they are required to do as a matter of law.(75) :

Nevertheless, as will be seen in this section and elsewhere in this chapter, cases involving those in a persistent vegetative state, still have to be, and other cases continue to be, brought to the courts for declarations.

As already noted, in the case Re T, the English Court of Appeal asserted the common law right of every adult with capacity to decide whether or not to accept medical treatment.(76) This right, including the right of a competent person to refuse treatment, however unreasonably, was considered established in English common law by Lord Goff of Chieveley who gave the leading judgment in the Bland Case.(77) The principles of the Bland Case have been applied in a number of cases in the Family Division where the person did not meet all of the criteria formulated by the Royal College of Physicians for being in a persistent vegetative state. As a result of a road traffic accident in 1989 when he was aged 22, and further brain damage from an unknown cause in 1995, a Mr D was in an irrevocable vegetative state and fed through a PEG tube. In 1997, Mr D’s condition met all but one of the Royal College of Physicians criteria for persistent vegetative state and the then President of the Family Division, Sir Stephen Brown, was satisfied that the evidence showed that Mr D had no awareness and no meaningful life whatsoever. The judge was satisfied that it was not in Mr D’s best interests to keep his body alive and granted the declaration allowing his PEG tube to be removed.(78)

In 2000 the then President of the Family Division, Dame Elizabeth Butler-Sloss, considered together the cases of two women in persistent vegetative states and fed through PEG tubes. One had suffered hypoxic brain damage as a result of a cardio-respiratory arrest while under a general anaesthetic, the other had anoxic brain damage as a result of an asystolic cardiac arrest. There was no evidence of their views about treatment if they were in this state, but their families and those treating them all supported the withdrawal of artificial nutrition and hydration. The judge made declarations following the principles in the Bland Case.(79) She also considered whether making such declarations would breach the relevant articles of the European Convention of Human Rights and Fundamental Freedoms 1950, incorporated into United Kingdom law as Schedule 1of the Human Rights Act 1998 (UK), and decided that it would not.(80)

Another year 2000 case involved another Mr D who, because of a congenital deformity of his brain, had at 40 had gone into “a deeper level of vegetative state than that of Tony Bland”.(81) His wife, brothers and parents all said he should be allowed to die and that he would not like to continue living in this condition. There was no evidence of Mr D having expressed views about being in this condition. Johnson J noted that Mr D could no longer be properly fed and that he was effectively starving to death. Johnson J continued:

Mr D is a patient who, whatever is done for him, will die quite shortly. The issue is whether the period of his dying should be extended by continuing the hydration. It is plain on the evidence that that would be contrary to his best interest.(82)

A 2001 decision of the Family Division shows some of the difficulties arising from the House of Lords requiring applications being made to the Family Division for declarations allowing artificial nutrition and hydration to be withdrawn from an incapable person. This has effectively placed the responsibility for making such applications on the hospitals involved resulting in them being prepared to make such applications only in very clear cases, sometimes keeping people alive without hope of recovery for long periods. In NHS Trust A v H, Mrs H who was born in 1927 suffered a stroke aged 60 in 1987. In February 1993 she had further brain haemorrhages and became unconscious.(83) She had been unconscious ever since and had been fed through a PEG tube which had been replaced in both 1997 and 2000. Her condition remained unchanged for nearly eight years before an application was made to the court.

Since 1995, if not before, her son and daughter had thought it was not appropriate for her to have been kept alive through artificial means. In June 2000 a consultant neurologist formed the view that Mrs H was in a minimally conscious as different from a permanent vegetative state. This was based on his observation and on the observation of a nurse that she had a degree of visual tracking and a degree of response to menace.

The hospital was already being cautious. Faced with this difficulty it sought advice from a leading expert in the field who advised that Mrs H was unresponsive to any approaches of any sort to cognitive thinking. The expert gave evidence that Mrs H’s case was not one of minimal consciousness but one of permanent vegetative state. While there was evidence of fragments of cortical activity, there was no evidence of a “working mind”.(84) Butler-Sloss P proceeded to make the declaration sought noting that:

It is painfully clear that this patient has been kept alive for many years by devoted care, nursing and artificial treatment. There can be no question of her ever recovering. She is in a situation which has been expressed in the House of Lords as “a living death”. It is very sad for her. It is extremely distressing for her family. I can see no advantage to her in continuing to be artificially provided with nutrition and hydration. In my judgment it is entirely proper that the PEG tube should not be replaced and indeed that that artificial nutrition and hydration should be brought to an end and that she should be permitted to die peacefully….(85)

In 2001 eight years and many cases after the Bland Case, a new practice note was issued by the Official Solicitor dealing with permanent vegetative state cases.(86) The practice note confirmed that applications are to be made to the Family Division of the High Court. It stated that it was futile to provide medical treatment, including artificial nutrition and hydration, to a patient who had no awareness of self or environment and no prospect of recovery. It noted that the court’s concern is whether there is any awareness whatsoever or any possibility of change.(87) The Practice Note also suggests that a diagnosis of permanent vegetative state should not be made until a patient has been in a continuing vegetative state following head injury for 12 months or following other causes of brain damage for six months. It also advises as to who should give the medical evidence.(88) As to other evidence, evidence of the views of the family are encouraged, but there is no reference to evidence of the views of the person.(89)

In accordance with the Practice Note applications continue to be made to the Family Division. In October 2001 the court gave a declaration to allow the withdrawal of nutrition and hydration from a 45 year old woman, Mrs G, who had suffered extremely severe brain damage as a result of complications after minor surgery in September 2000 and who had no prospect of recovery.(90) Butler-Sloss P dealt with the fact that Mrs G had expressed a strong view during her life that “if she was found in this situation she should not be kept alive regardless” as a reason why Mrs G’s family unanimously supported the order rather than as a reason in itself for granting the declaration. The “best interests” test and those for whom treatment is intrusive and hazardous and will not bring about recovery

In the Bland Case, Lord Goff of Chieveley recognized that there were different kinds of cases in which the courts had to consider the best interests of an incompetent patient. There were the cases of those who were unconscious with no prospect of recovery and those cases “in which having regard to all of the circumstances (including, for example, the very intrusive nature of the treatment, the hazards involved in it, and the very poor quality of the life which may be prolonged for the patient if the treatment is successful), it may be judged not to be in the best interests of the patient to initiate or continue life-prolonging treatment”.(91)

One of latter kinds of case occurred in England in 2005.(92) An 86 year old man, Mr A, who was originally from Pakistan but who had settled in Scotland and who had already had a coronary bypass and a number of mini strokes fell seriously ill while visiting his home country. He had a heart attack, developed acute chronic renal failure, peripheral edema and total lack of urine production. He was flown back to England, but collapsed before he could return to Scotland and was admitted to hospital close to death. He had another cardiac arrest in hospital but was resuscitated. He could not be weaned off either respiratory or renal support. He was fed through a naso-gastric tube and had a number of invasive catheters inserted in him to so he could be monitored and provided with drugs. Within a short period the assessment of his treating doctors was that there was little likelihood of his recovery. They believed that the treatment he was receiving would not change the outcome of his illness and that, if it continued, it would subject him to both psychological and physical distress. They concluded that it was in his best interests to withdraw all but palliative care.

On the one hand, Mr A’s family opposed the proposals to withdraw life-sustaining treatment They believed that there was some hope of recovery and that Mr A was not suffering any pain. They were all practicing Muslims and they had been advised by at least one Iman that to discontinue Mr A’s treatment regime was contrary to the Islamic faith and belief system. On the other hand, because of the nature of the treatment and the need to insert new lines and naso-gastric tubes and replace those that Mr A pulled out, those treating him considered their treatment was an assault on him.

Lawyers became involved. Experts examined Mr A either directly or by more distant observation. All but one were of the view, particularly as time progressed, that the treatment was intrusive, put Mr A through considerable discomfort with the chances of it producing any reasonable quality of life being very low. They were of the view that that it was not in Mr A’s best interests to be put through this considerable discomfort and that palliative care would allow him to die peacefully and with dignity. Within two months of Mr A’s return to England, the Family Division had given a declaration that only palliative care need be given to Mr A and the Court of Appeal had upheld that decision.

While the Court of Appeal placed great reliance on the evidence of the medical experts, it is clear it is the view of that court that in cases like this it is for the judges and not the doctors to decide what is in the best interests of the patient.(93)

This is not just an assertion of the role of judges, it is based on the idea that the judicial decision will not only take account of the circumstances of the case from a medical point of view, but will also incorporate broader ethical, social, moral and welfare considerations.(94) The standard of proof – a high degree of probability that it is in the person’s best interests that life-sustaining treatment not continue

The Court of Appeal held that a judge had to be satisfied to a high degree of probability by the evidence before they could make a declaration allowing the withdrawal of life-sustaining treatment.(95)While the medical evidence is given great weight, the views of the person and their family are somewhat discounted. In Mr A’s Case, Waller LJ was rather dismissive. He said:

I can say straightaway that when one examines the law, one finds obviously that views, if one can interpret them, of what the patient might be and the views of the family are highly material factors. At the end of the day they are not however the governing factors when considering best interests.(96) The court determines best interests in England, not the person or their family

Coleridge J of the Family Division took a similar view but put it more gently in The NHS Trust v Ms D.(97) In that case Ms D was 32 when she went into a vegetative state in 2005. She had the terminal condition mitochondrial cytopathy which attacked her brain and caused her to have continuous epileptic seizures. The medical evidence was that she probably had no awareness of any kind and that there was no hope of recovery. Her treating doctors took the view that it was not in her best interests to try and prolong her life if, for example, either her breathing failed or she suffered cardiac arrest or contracted a potentially life threatening infection which would normally be treated by antibiotics. The NHS Trust asked the court to declare that it is not in Ms D's interests to take these, and other invasive steps, given her current condition.

Ms D's parents, seven of her other relatives and her partner disagreed. They opposed the doctors doing or declining to do anything which might not prolong her life for as long as possible. They said that Ms D had some awareness and that on occasions she recognized them and communicated with them by blinking or the squeezing of her hand or similar signs. They said she was a fighter and that miracles do happen. The doctors' response was that the movements they saw were reflex actions and not true signs of awareness and that to intervene beyond providing the best possible nursing and palliative care is to do no more than prolong Ms D’s dying process for Ms D for no discernible purpose and for probably no more than an extra six to twelve months.

Coleridge J granted the declaration that it was not in Ms D’s best interests that she receive active treatments, but that she be given palliative care. In relation to the family’s view he said:

From the family's point of view, of course, every extra day is worth fighting for and, given what they have had to face in the past few years, no one can have anything but the profoundest sympathy for them in their hope for the arrival of a miracle. But my focus must be on the patient's best interests and not on the family best interests.

In my judgment Ms D's best interests demand that she should not be subjected to more than the minimum necessary to allow her to die peacefully and with dignity.(98)

The English courts have been clear that their view of what is in the patient’s best interests can override the views of the patient’s family. Their power to override the views of the patient has been more controversial, but was asserted in the Court of Appeal in 2005.(99) That power to override must however be exercised with great caution and only on the basis of well substantiated, but not necessarily uncontradicted evidence, from appropriately qualified and experienced doctors.

In 2005 Mr Burke was 45 years of age. He suffered from a congenital degenerative brain condition known as spino-cerebellar ataxia, which confined him to a wheelchair. His movements were uncoordinated. His condition affected his speech, but his mental ability was not impaired. Nevertheless, because of his condition there would come a time when he would be entirely dependent on others for his care and his very survival. In particular, he would lose the ability to swallow and would require artificial nutrition and hydration by tube to survive. The medical evidence was that he was likely to retain full cognitive faculties even during the end stage of his disease. He was unlikely to lose his capacity to make decisions for himself and was likely to be able to communicate his wishes until his death was imminent. He was likely to retain almost until the end insight and awareness of the pain, discomfort and extreme distress that would result from malnutrition and dehydration. If food and water were to be withheld he would die of dehydration after some two to three weeks. Mr Burke wanted to be fed and provided with appropriate hydration until he died of natural causes. He did not want artificial nutrition and hydration to be withdrawn. He did not want to die of thirst. He did not want a decision to be taken by the doctors that his life was no longer worth living. In order to ensure that his wishes would be given effect to, he sought judicial review of the guidance issued in 2002 by the General Medical Council "Withholding and Withdrawing Life Prolonging Treatments: Good Practice in Decision-making". Permission to proceed with this application was given and Munby J made a series of declarations. The Court of Appeal set aside these declarations, but made a number of statements about the law as it related to Mr Burke's circumstances and wishes.

In a single judgment, the court made it clear that the fact that a patient when competent made it plain that they wished to be kept alive by artificial nutrition and hydration was not the source of the duty to provide such treatment. The court stated that once a patient had been accepted into hospital, the medical staff came under a positive duty at common law to care for the patient, including a duty to take such steps as are reasonable to keep the patient alive. Where artificial nutrition and hydration was necessary to keep the patient alive, the duty of care would normally require the doctors to supply this. However, this duty did not override the competent patient's wish not to receive artificial nutrition and hydration.(100)

The court took the view that while the common law has recognised that the duty to keep a patient alive by administering artificial nutrition and hydration or other life-prolonging treatment is not absolute, the exceptions to that duty were restricted to where a competent patient refuses to receive artificial nutrition and hydration and where a patient is not competent and it is not considered to be in their best interests that they kept alive artificially.(101)

The English courts have accepted that where life involves an extreme degree of pain, discomfort or indignity to a patient, who is sentient but not competent and who has manifested no wish to be kept alive, such circumstances may absolve doctors of the positive duty to keep the patient alive. Equally the courts have recognised that there may be no duty to keep alive a patient who is in a persistent vegetative state.(102)

In an attempt to put Mr Burke at ease the Court of Appeal stated that, in a situation in which a competent patient made it plain that they wished to be kept alive, regardless of the pain, suffering or indignity of their condition, a doctor who deliberately interrupted life-prolonging treatment with the intention of thereby terminating the patient's life, would leave themselves with no answer to a charge of murder.(103) Nevertheless, the court went on to point out that doctors are not obliged to provide to a patient treatment that the patient demands if the doctor believed that the treatment is not clinically indicated. The court endorsed the following propositions about how treatment is proposed and consented to or refused by a competent patient:
  1. Doctors, exercising their professional clinical judgment, decide what treatment options are clinically indicated (i.e. will provide overall clinical benefit) for their patients.
  2. Doctors then offer those treatment options to all their patients in the course of which they explain to them the risks, benefits, side effects, etc. involved in each of the treatment options.
  3. The patients then decide whether they wish to accept any of those treatment options and, if so, which one. In the vast majority of cases the patient will, of course, decide which treatment option they consider to be in their best interests and, in doing so, may take into account other, non-clinical factors. However, patients can if they wish decide to accept (or refuse) the treatment options recommended on the basis of reasons which are irrational or for no reasons at all.
  4. If the patient chooses one of the treatment options offered to them, the doctor will then proceed to provide it.
  5. If, however, the patient refuses all the treatment options offered and instead informs the doctor that they want a form of treatment which the doctor has not offered, the doctor will, no doubt, discuss that form of treatment with them but if the doctor concludes that this treatment is not clinically indicated, the doctor is not required (i.e. the doctor is under no legal obligation) to provide it to the patient although the doctor should offer to arrange a second option(104) Orders suppressing the identity of the patient, their family and the hospital in which they are being treated.

In dealing with these sensitive cases which have the potential to be sensationalised in the media, the courts have occasionally at least made orders suppressing the identity of the patient, their family and the hospital they are in. In one case, Butler-Sloss put it this way:

It is extremely important for the sake of the patient that neither she nor any member of her family, nor the existing hospital, nor the hospital to which she will go in order that she may die with dignity and peace is identified. It is not necessary to explain why; it is quite obvious that any identification might lead to distress to anyone who is in fact dealing with her over the next few days or weeks. Consequently, it is crucial that the press understand and any members of the public understand that there is a prohibition on that degree of publication. But there is no prohibition of course on publishing the facts of this case or indeed anything I have said other than in relation to names.(105)

11.3 The differences between the US and English common law

While there are different courts for England and Wales, Scotland and Northern Ireland the common law of the United Kingdom jurisdictions, particularly the recent developments in that law, tends to be the same. This is partly because the United Kingdom Supreme Court (previously known as the House of Lords) is the final court of appeal in civil matters in all United Kingdom jurisdictions and because of the convenience of having the same common law throughout the country. Also the parliament in Westminster makes the statute law that applies to England, Wales and Northern Ireland and sometimes Scotland. In this regard the common law is affected by fewer pieces of legislation than in the US where State legislation can affect the common law in many different ways in the different States. The US common law is also affected by the US constitution. While there is no written constitution in the UK, as has already been noted, the European Convention of Human Rights and Fundamental Freedoms 1950 has been incorporated into United Kingdom law as Schedule 1of the Human Rights Act I. It will have effects similar to the effects on US common law the “Bill of Rights” provisions of the US constitution have had in the last 50 years.

Aside from these factors, there are a number of differences in the way the judges have developed the law in the UK and the USA. These can best be shown by summarising those parts of the UK common law that are different from that developed in the US. These are:
  1. The best interests test is used in relation to both those in a persistent vegetative state and those with different conditions not involving unconsciousness but for whom treatment is intrusive, hazardous and unlikely to produce anything more than a very poor quality of life.
  2. Court approval continues to be required in cases involving persistent vegetative state and the other conditions referred to in 1.
  3. The views of the person do not have to be proved. Their views and those of their family can be taken into account, but it is for the court to decide what is in the person’s best interests.

There are also similarities. These are:
  1. In the UK a judge has to be satisfied to a high degree of probability by the evidence before they can make a declaration allowing the withdrawal of life-sustaining treatment. This seems similar to the “clear and convincing evidence” test developed in the US.
  2. The starting point is the maintenance of life. In the UK this is stated as a positive duty on hospitals to take such steps as are reasonable to keep a patient alive. While in both the US and the UK this duty is not absolute, substantial proof must be shown before life-sustaining treatment may be discontinued.

11.4 Developments in the Australian law

In a review of the developing body of Australian Supreme Court jurisprudence regarding life-sustaining treatment decisions for adults who lack capacity, Willmott et al identified only16 decisions.(106) Of these, eight cases focused on the validity of advance care directives and interpretation of guardianship legislation, while eight focused on the issue of best interests. Six key themes from this review emerged, namely:
  1. Futile medical treatment is not in a patient’s best interests;
  2. Overly burdensome treatment is not in a patient’s best interests, regardless of whether the patient is unaware of such treatment burdens or is unconscious;
  3. Although quality of life assessments remain relevant to best interests, consideration of medical condition and prognosis, courts have generally not engaged expressly as such in these assessments (although indirectly so using capacity to engage meaningfully with the world);
  4. Patient wishes and valued gathered when competent, while relevant to, are not determinative of, best interests. Similarly, family members’ views, when reflecting patient wishes and perhaps also their own wishes may be relevant, but are not determinative of best interests;
  5. Interest of other people and organisations, including the wider health system are not relevant to a patient’s best interests;
  6. Courts have generally deferred to medical practitioner opinion about treatment decisions, even in the face of strong opposition from the patient’s family.

One of the first Australian cases that dealt with these issues was Messiha v South East Health [2004] NSWSC 1061 (Messiha) in which Justice Howie held that active treatment for a 75 year old man without an advance care directive who suffered an out-of-hospital asystolic cardiac arrest with resultant hypoxic brain damage, was futile, intrusive and burdensome. The Court disagreed with the family’s view that treatment was in the patients’ best interests.(107)

In 2009, McDougall J of the Supreme Court of New South Wales confirmed that the common law recognises a competent adult’s right to autonomy or self-determination: the right to control their own body.(108) He relied on United States, Canadian, United Kingdom and Australian authority.(109) Martin CJ of the Western Australian Supreme Court supported him, but Higgins CJ of the Supreme Court of the Australian Capital Territory was more circumspect.(110)

The 2009 case that came before the Supreme Court of New South Wales involved a Mr A who had made an advance directive in an appointment of enduring guardianship. In it he directed his enduring guardian to refuse consent to dialysis. By July 2009 Mr A was being kept alive by mechanical ventilation and kidney dialysis.(111) The relevant Area Health Service sought a declaration that Mr A’s treating doctors would be justified in complying with Mr A’s wishes as set out in the advance directive.

McDougall J noted that the common law recognised two sometimes conflicting matters. First, a competent adult’s right of autonomy or self–determination: the right to control their own body. Second the interest of the State in protecting and preserving the lives and health of its citizens. After considering United Kingdom and Canadian cases on that conflict, which are dealt with above at 11. 2. 2 and 11. 2. 3, McDougall J stated that the right to reject medical treatment does not depreciate the value of life. He noted that a proper understanding of society’s interest in the preservation of life cannot be considered without taking into account the constituents or attributes of life and that in a free and democratic society those attributes include the right of autonomy or self-determination.(112) He also stated, relying on English authority, that:

It is in general clear that, whenever there is a conflict between a capable adult’s exercise of the right of self-determination and the State’s interest in preserving life, the right of the individual must prevail.(113)

McDougall J then went on to deal with the issue of consent in relation to consents to or refusals of treatments set out in advance directives. He noted that an apparent consent or refusal of consent may be ineffective for a number of reasons:
  1. the individual concerned may not have been competent in law to give or refuse that consent.
  2. even if the individual were competent in law, the decision may have been obtained by undue influence or some other vitiating means.
  3. the apparent consent or refusal may not extend to the particular situation
  4. the terms of the consent or refusal may be ambiguous or uncertain.(114)

McDougall J dealt with the argument that refusal of medical treatment will be vitiated if it is based on incorrect information or an incorrect assumption. It could be argued that he appeared to accept that there may be some situations in which it could be said that a refusal of consent was ineffective because it was based on incorrect information or an incorrect assumption. However he noted the proposition well established in the common law that a valid refusal may be based upon religious, social or moral grounds, or upon no apparent rational grounds. That proposition led him to state in relation to the suggestion that the absence of, or failure to provide, adequate information could vitiate refusal of treatment:

I do not accept the proposition that, in general, a component adult’s clearly expressed advance refusal of specified medical procedures or treatment should be held to be ineffective simply because, at the time of statement of the refusal, the person was not given adequate information as to the benefits of the procedure or treatment (should the circumstances making its administration desirable arise) and the dangers consequent upon refusal.(115)

McDougall J then came back to matters relevant to incorrect information or an incorrect assumption and was clear, based on the High Court’s decision in Rogers v Whitaker that an apparent consent to medical treatment may be vitiated if, there was an adequate opportunity for explanation of the treatment and its benefits and dangers, but no proper explanation was given.(116)

He accepted that in circumstances where it was practicable for a doctor to obtain consent to treatment, that, for the consent to be valid, it must be based on full information, including information as to risks and benefits. But he then went on to deal with a question that is fundamental to the effectiveness of advance directives namely, whether an advance refusal of consent to certain specified forms of medical treatment equally needed to be supported by the provision of all adequate information.

McDougall J stated that a consent based on misleading information was clearly of no value and that a consent based on insufficient information was not much better, but went on to point out that:

[O]nce it is accepted that religious, social or moral convictions may be of themselves an adequate basis for a decision to refuse consent to medical treatment, it is clear that there is no reason that a decision made on the basis of such values must have taken into account the risks that may follow if a medical practitioner respects and acts upon that decision. This is so a fortiori where there is no discernible rational basis for the decision. No question arises of justifying what would otherwise be unlawful, and factors to be taken into account in determining whether something is or is not unlawful do not have application by analogy.(117)

McDougall J then went on to deal with the “emergency principle” or “principle of necessity” and stated:

It follows that the principle of necessity cannot be relied upon to justify a particular form of medical treatment where the patient has given an advance care directive specifying that he or she does not wish to be so treated, and where there is no reasonable basis for doubting the validity and applicability of that directive.(118)

McDougall J then went on to lay out the approach to be taken when dealing with what he called “an advance refusal of medical care”. It is suggested that his approach, set out below, applies to other forms of advance directive as well and to all those dealing with advance directives whether they be doctors, other health professionals, service-providers, family members or friends. McDougall J pointed out that:

[I]f there is any real doubt as to the sufficiency of an advance refusal of medical treatment, the court should undertake a careful analysis. But the analysis should start by respecting the proposition that a competent individual’s right to self-determination prevails over the State’s interest in the preservation of life even though the individual’s exercise of that right may result in his or her death. An over-careful scrutiny of the material may well have the effect of undermining or even negating the exercise of that right.

It is necessary to bear in mind that not all those who execute advance care directives are legally trained. Their words should not be scrutinized with the care given to a particularly obscure legislative expression of the will of Parliament. On the other hand, particularly bearing in mind the likely consequences of upholding an apparent exercise of the right of self-determination, the court must feel a sense of actual persuasion that the individual acted freely and voluntarily, and intended his or her decision to apply to the situation at hand. As Robins JA pointed out in [Malette Shulman](119), if a medical practitioner is to act on doubts as to the validity of an advance refusal of medical treatment, those doubts must be rationally founded. The same applies to a court asked to determine the validity of an advance refusal of medical treatment. It cannot be correct to recognise, on the one hand, an individual’s right of self-determination; but, on the other, effectively to undermine or take away that right by over-nice or merely speculative analysis.(120)

McDougall J was satisfied by the evidence that Mr A had made a decision to refuse dialysis and that he was competent to do so at the time he made the decision. Also he was satisfied that Mr A’s expression of intent had not been vitiated in any way and that it was clear that the refusal of dialysis was Mr A’s “own voluntary decision”.(121) McDougall J noted that the result of the withdrawal of dialysis would hasten Mr A’s death but, nevertheless, gave the Area Health Service a declaration that it would be justified in complying with Mr A’s wishes as expressed in his advance directive to his enduring guardian.(122)

The Western Australian case did not involve giving effect to the advance directive of a person who had become incapable of giving a valid consent to receiving or refusing medical treatment. A care organisation sought declarations from the Supreme Court regarding a client with quadriplegia who was fed through a percutaneous endoscopic gastronomy tube (a PEG tube) which he wanted removed knowing that it would cause his death.(123) The man was clearly competent and understood the consequences for him of the PEG tube being removed. Martin CJ noted that the right of autonomy or self-determination was well established in the common law and that, as a corollary an individual of full capacity was not obliged to give consent to medical treatment, nor was a medical practitioner or other service provider under any obligation to provide such treatment without consent, even if the failure to treat will result in the loss of the patient's life. Martin CJ noted that this principle has been established by decisions in the common law jurisdictions of the United States, Canada, the United kingdom, New Zealand and Australia.(124) Martin CJ then went on to make declarations that:
  1. If after the man had been given advice by an appropriately qualified medical practitioner as to the consequences which would flow from the cessation of the administration of nutrition and hydration, other than hydration associated with the provision of medication, he requested that his service providers cease administering such nutrition and hydration, then his service providers could not lawfully continue administering nutrition and hydration unless he revoked that direction. Further, his service providers would not be criminally responsible for any consequences to his life or health caused by ceasing to administer such nutrition and hydration to him.
  2. Any person providing palliative care to the man on the terms specified in s.259(1) of the Criminal Code (WA) would not be criminally responsible for providing that care notwithstanding that the occasion for its provision arose from the man's informed decision to discontinue the treatment necessary to sustain his life.(125)

The third 2009 case, Australian Capital Territory v JT, proceeded on the basis that JT could not be regarded as having refused available medical treatment because of his psychotic condition for which he was receiving the maximum tolerable dose of anti-psychotic medication.(126) JT had a psychiatric history going back many years, but following the death of Pope John Paul II in 2005, he became obsessed with fasting to bring him closer to God. His fasting amounted to starvation which was life threatening in itself; however, he had the irrational belief that God would not let him die.

Over a period of four years he was hospitalised and fed through a naso-gastric tube to avoid starvation. He resisted this treatment and had to be forcibly restrained. This forcible feeding caused distress to both JT and the people carrying out the treatment. Feeding through a PEG tube would require surgical insertion of the tube and was not a long-term solution of itself, leaving aside the question of JT seeking to remove the tube.

As early as 2005, consideration was given by JT’s treating doctors to “a simple palliative approach” which Higgins CJ noted meant “avoiding euphemisms” would allow JT to starve to death while easing the associated suffering. In 2009 the Australian Capital Territory sought a declaration that it is lawful for doctors employed by it to desist from affording treatment other than palliative care to JT.

The Territory argued that JT was accepting death and that his wishes should be accepted. Higgins CJ’s response was that JT lacked capacity to give a valid consent and that his wishes arose from delusion and irrational thought caused by his severe mental illness.(127)After consideration of some of the cases relied upon by McDougall J and Martin CJ, Higgins CJ went on to state that:

Even in the case of a competent adult refusing treatment, medical carers are not entitled to respect those wishes and may be under a duty not to if there is reason to suppose that the capacity of the patient to make a reasoned decision has been diminished by illness or medication, false assumptions, misinformation or undue influence. If so, the medical carers must apply such treatment as their clinical judgment deems to be in the best interests of the patient apart from those wishes. Primarily, that is the patient’s continued survival compatibly with, not the interests of the medical carers institutional or otherwise, but the interests of that patient. In that context it would involve a judgment as to the quality of the continued state of the patient as against the temporary risks or discomfort. Thus the use of forcible restraint to achieve a therapeutic benefit or avert a therapeutic disaster would be the duty of medical carers to apply not an option they can simply chose to avoid out of distaste for it.(128)

We suggest that there is an element of contradiction in these statements. Specifically, if the capacity of a person to make a reasoned decision has been diminished by illness or medication, false assumptions, misinformation or undue influence, as JT was, then they are not, by definition, a competent adult. In such circumstances, that is, where there is a non-competent refusal of care, there is a duty of medical carers to provide care. However, in the case of a competent adult, these statements would not reflect the view of the established law as articulated by McDougall J and Martin CJ set out in the two cases discussed above. Competent patients have the right to refuse treatment which they do not wish to receive, no matter how unwise that decision is, and medical carers must respect those wishes.(129)

Returning to the matters Higgins CJ had to decide, he noted that the obligation to preserve life was not absolute but that there was a strong presumption in favour of prolonging life. He went on to state that JT’s treating doctors and other care providers were under a duty to provide “competent and effective treatment” despite their concern that providing care to JT was distressing to them and may violate his rights to humane treatment under Human Rights Act 2004 (ACT).(130) Furthermore, the Territory was no more entitled to refuse treatment to JT than to any other person in its care who was not competent to refuse it. Higgins CJ accepted that it was a matter of clinical judgment whether any proposed course of treatment for JT would be medically feasible.(131)

However, Higgins CJ noted that the application before him was for a declaration that it was lawful to decline to give medical treatment which was available and might, at least in the short to medium term, avert JT’s otherwise imminent death. Because he had formed the view that it might well be unlawful to decline to give relevant medical treatment, he could not, on the evidence that had been given so far, make the declaration that was sought.(132)

11.5 Assisted suicide and euthanasia

As was pointed out by the US Supreme Court in Washington v Glucksburg in 1997, an examination of history, legal traditions and practices shows that Anglo-American common law has punished or otherwise disapproved of assisting suicide for over 200 years.(133) Australian common law reflects the same tradition.

This book does not deal with either assisted suicide or euthanasia. None of the actions taken by doctors as a result of their own decisions or the decisions of others, including courts, tribunals and public officials in relation to the withholding or withdrawal of medical treatment from patients amounts to assisting suicide or euthanasia when carried out according to the law and practices discussed in this book. Lord Goff of Chieveley noted in the Bland Case the clear distinction between the bounds of lawful treatment which could include a decision to withhold or withdraw life-sustaining treatment that was no longer fulfilling any therapeutic purpose and unlawful euthanasia.(134)


1 : Ferri CP, Prince M, Mrayne C., et al Global prevalence of dementia: a Delphi consensus study Lancet. (2005) 366 (9503): 2112-7.

2 : Rich, B A, Strange Bedfellows – How medical jurisprudence has influenced medical ethics and medical practice, New York, Kluwer Academic, 2001, 51-53; Mohr v Williams 104 N E 12, 14 and 14-15 (1905). See also Pratt v Davis 79 N E 563 (1906).

3 : 105 N.E. 93, 93 (1914).

4 : Rich op. cit. (footnote 2), Chs 4 and 5 generally. See also Salgo v Leland Stanford Jr University Board of Trustees 317 P.2d 170(1957) and Natanson v Kline 350 P.2d 1093 (1960).

5 : Rich op. cit. (footnote 2), Chs 4 and 5 generally. See also Salgo v Leland Stanford Jr University Board of Trustees 317 P.2d 170(1957) and Natanson v Kline 350 P.2d 1093 (1960).

6 : Urofsky, M I, Letting Go: Death, Dying and the Law, Norman, University of Oklahoma Press, 1994,132.

7 : Ibid 550-551.

8 : Ibid 551-554.

9 : Urofsky, op cit (footnote 5), 137.

10 : John F Kennedy Memorial Hospital v Bludworth 452 So.2d 921, 926 (1984)

11 : Ibid.

12 : Ibid.

13 : Ibid.

14 : Ibid.

15 : Ibid. 926-927.

16 : Malette v Shulman (1987) 47 DLR (4th) 18.

17 : Malette v Shulman (1990) 67 DLR (4th) 321, 333.

18 : Ibid 332 and 337.

19 : Re T [1992] EWCA Civ 18; [1993] Fam 95. See also Airedale NHS Trust v Bland [1992] UKHL 5; [1993] AC 789, 864; Re C [1994] 1 All ER 819 and R (Burke) v General Medical Council [2005] EWCA Civ 1003, [57][2005] EWCA Civ 1003; , [2006] QB 273.

20 : Re C [1994] 1 All ER 819, 824 and 825.

21 : B. R (on the application of) v General Medical Council [2005] EWCA Civ 1003, [57][2005] EWCA Civ 1003; , [2006] QB 273.

22 : T. Re [1992] EWCA Civ 18 [28]; [1992] EWCA Civ 18; [1993] Fam 95.

23 : Ibid. [39] or page 116.

24 : Ibid. [3] or page 102.

25 : T. Re [1992] EWCA Civ 18; Re T [1992] EWCA Civ 18; [1993] Fam 95, 102-103, 115-116 (Lord Donaldson) and the judgments of Butler-Sloss and Staughton LJJ.

26 : Ibid. [28] or page 113.

27 : Ibid. [6] or page 103.

28 : Ibid.

29 : Nancy B v Hotel-Dieu de Quebec (1992) 86 DLR 4th 385.

30 : Re C [1994] 1 All ER 819.

31 : Re B (adult: refusal of medical treatment) [2002] EWHC 429 (Fam); [2002] 2 All ER 449.

32 : Ibid. [100].

33 : In the matter of Quinlan 355 A.2d 647 (1976). See also Rich, B A, Strange Bedfellows – How medical jurisprudence has influenced medical ethics and medical practice, New York, Kluwer Academic, 2001), 68 and Pence, G, Classic Cases in Medical Ethics, Boston, McGaw -Hill, 3rd ed, 2000, ch. 2.

34 : Cruzan v Director, Missouri Department of Health [1990] USSC 122; 497 US 261, 290 (1990).

35 : Ibid. 2852-2853.

36 : Ibid. 320.

37 : Pence, op cit (footnote 33), 41.

38 : Annas, G J, “Nancy Cruzan and the right to die” (1990) NEJM, Vol 323, no 10, 670, 672.

39 : 497 US 261, 290 (1990).

40 : Ibid. 290-291.

41 : See for example, In the matter of Conroy 486 A.2d 1209 (1985); In re Rosebush 491 N.W.2d 633 (1992); In re Martin 538 N.W.2d 399 (1995) and Conservatorship of Wendland 28 P.3d 151 (2001).

42 : John F Kennedy Memorial Hospital v Bludworth 452 So.2d 921, 926-927 (1984).

43 : In the estate of Browning 568 So.2d 4, 15 (1990).

44 : In re Martin 538 N.W.2d 399 (1995).

45 : Ibid. 410.

46 : Ibid. 411.

47 : Ibid. 415.

48 : Ibid. 408.

49 : Ibid. 408-409.

50 : Conservatorship of Wendland 28 P.3d 151 (2001).

51 : Ibid. 157.

52 : Ibid. 170 and 173.

53 : Ibid. 174.

54 : Ibid. 175.

55 : 568 So.2d 4 (1990).

56 : In re the Guardianship of Schiavo 2000 WL 34546715 (Fla. Cir. Ct.)

57 : Gostin, J O, “Ethics, the Constitution and the Dying Process – the case of Theresa Marie Schiavo” (2005) JAMA Vol 293 No 19 2403.

58 : For a more detailed descriptions of the Schiavo matter see, Mendelson, D and Ashby, M “The medical provision of hydration and nutrition: Two very different outcomes in Victoria and Florida” (2004) 11 JML 282, 286-291 and Wllmott, L, White, B, Cooper, D, “The Schiavo decision: Emotional but legally controversial?” (2006) 18 Bond Law Review 132. See also Skene, L, “The Schiavo and Korp cases: Conceptualising end-of-life decision-making” (2005) 13 JML 223.

59 : In the matter of the Guardianship of L.W. 482 N.W.2d 60 (1992).

60 : Ibid. 64.

61 : Ibid. 63-64.

62 : Ibid. 63-64.

63 : Ibid. 68.

64 : Ibid. 69.

65 : Ibid. 70.

66 : Ibid. 71-72. For another account of the factors to be considered see, In re Conroy 486 A.2d 1209 (1985), 1230-33 and 1249-50 in particular.

67 : In the matter of the Guardianship of L.W. 482 N.W.2d 60, 76-79 (1992).

68 : Gostin, J O, op cit (footnote 57) 2403.

69 : This may explain why in 2002 in the Schiavo Case Mrs Schiavo’s parents sought to show that she was in a minimally conscious state rather than in a persistent vegetative state. Greer J did not accept this new evidence. He was upheld on appeal. See In re Guardianship of Schiavo 2002 WL 31817960 (Fla. Cir. Ct.) and In re Guardianship of Schiavo 851 So.2d 182 (2003).

70 : [1992] UKHL 5; [1993] AC 789.

71 : Ibid. 871-872. For a New Zealand case which takes a similar approach but predates Bland see, Auckland Health Board v Attorney-General [1993] 1 NZLR 235.

72 : Law Hospital NHS Trust v Lord Advocate [1996] ScotCS CSIH_2; [1996] SC 301.

73 : In re F [1991] UKHL 1; [1990] 2 AC 1, 57-58 and Airedale NHS Trust v Bland [1992] UKHL 5; [1993] AC 789, 862. For the procedure to follow see, Practice Note (Official Solicitor: Declaratory Proceedings: Medical and Welfare Decisions for Adults who lack Capacity) [2001] 2 FLR 158.

74 : R (Burke) v General Medical Council [2005] EWCA Civ 1003, [69][2005] EWCA Civ 1003; , [2006] QB 273. For the decision appealed from see, R (Burke) v General Medical Council [2004] EWCA 1879 (Admin), [2005] QB 424.

75 : Ibid. [80].

76 : Re T [1992] EWCA Civ 18; [1993] Fam 95.

77 : Airedale NHS Trust v Bland [1992] UKHL 5; [1993] AC 789, 862.

78 : Re D (Medical Treatment) [1998] 1 FLR 411. For another 1997 case involving a person in a condition which did not meet all the Royal College of Physicians’ criteria for persistent vegetative state but in relation to whom a declaration was granted see, Re H (A Patient) [1998] 2 FLR 36.

79 : NHS Trust A v M; NHS Trust B v H [2001] 1 All ER 801.

80 : Ibid. 806-814.

81 : NHS Trust v D (unreported, Family Division, Johnson J, 10 November, 2000, 3. Mr D had a progressive, untreatable brain lesion, a posterior fossa arterio-venous malformation.

82 : Ibid. 4.

83 : Ibid. 4.

84 : Ibid. 504.

85 : Ibid. 506. For another case showing the cautious approach of UK hospitals see, NHS Trust v I [2003] EWHC 2243 (Fam).

86 : [2001] 2 FLR 158.

87 : Ibid. 165.

88 : Ibid.

89 : Ibid. 166.

90 : Re G (2001) 65 BMLR 6.

91 : Airedale NHS Trust v Bland [1992] UKHL 5; [1993] AC 789, 868.

92 : An NHS Trust v A [2005] EWCA Civ 1145.

93 : Ibid. [88]-[94]. See also In re S [2001] Fam 15, Butler-Sloss P at 27 and Thorpe LJ at 30.

94 : In re S [2001] Fam 15, Butler-Sloss P at 28 and Thorpe LJ at 30; An NHS Trust v A [2005] EWCA Civ 1145, [78] and [91].

95 : An NHS Trust v A [2005] EWCA Civ 1145, [74], [83] and [96]; In re J [1991] 2 WLR 140, 158.

96 : An NHS Trust v A [2005] EWCA Civ 1145, [59].

97 : [2005] EWHC 2439 (Fam).

98 : Ibid. [45]-[46].

99 : R (Burke) v General Medical Council [2005] EWCA Civ 1003, [2006] QB 273.

100 : Ibid. [31]-[32].

101 : Ibid. [33].

102 : Ibid.

103 : Ibid. [34].

104 : Ibid. [34].

105 : Re G (2001) 65 BMLR 6. See also NHS Trust v I [2003] EWHC 2243 (Fam), [27] and The NHS Trust v Ms D [2005] EWHC 2439 (Fam).

106 : Willmott L., White B., Smith M., Wilkinson DJC (2014) Witholding and withdrawing life-sustaining treatment in a patient’s best interests: Australian judicial deliberations Medical Journal of Australia 201 (9): 545-547.

107 : Faunce TA and Stewart C (2005) The Messiha and Schiavo Cases: third party ethical and legal interventions in futile care disputes Medical Journal Australia 183 (5): 261- 263.

108 : Hunter and New England Area Health Service v A [2009] NSWSC 761 [5].

109 : Ibid. [5]-[16].

110 : Bridgewater Care Group v Rossiter [2009] WASC 229 and Australian Capital Territory v JT [2009] ACTSC 105.

111 : Hunter and New England Area Health Service v A [2009] NSWSC 761.

112 : Ibid. [16].

113 : Ibid. [17]

114 : Ibid. [27].

115 : Ibid. [28].

116 : Rogers v Whitaker [1992] HCA 58, (1992) 175 CLR 479, 489.

117 : Hunter and New England Area Health Service v A [2009] NSWSC 761 [30].

118 : Ibid. [34].

119 : (1990) 67 DLR (4th) 321, 337.

120 : Hunter and New England Area Health Service v A [2009] NSWSC 761 [36]-[37].

121 : Ibid. [54]-[56].

122 : Ibid. [60]-[61].

123 : Bridgewater Care Group v Rossiter [2009] WASC 229.

124 : Ibid. [24]-[26].

125 : Ibid. [58]. Martin CJ gave his decision 14 August 2009. Mr Rossiter died 21 September 2009.

126 : [2009] ACTSC 105.

127 : Ibid. [17]-[18].

128 : Ibid. [38].

129 : See for example, Airedale NHS Trust v Bland [1992] UKHL 5; [1993] AC 789; Re T [1992] EWCA Civ 18; [1993] Fam 95; Malette v Shulman (1990) 67 DLR (4th) 321 and Hunter and New England Area Health Service v A [2009] NSWSC 761

130 : Human Rights Act 2004 (ACT) s 10.

131 : Australian Capital Territory v JT [2009] ACTSC 105 [63]-[65].

132 : Ibid. [66].

133 : 521 US 702 (1997).

134 : Airedale NHS Trust v Bland [1992] UKHL 5; [1993] AC 789, 873.

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