On 30 July 2018, the United Kingdom Supreme Court handed down its decision in An NHS Trust and others v Y [2018] UKSC 46 (and thank you to Bill Madden’s Medical + health law blog for bringing this case to my attention). (The UK Supreme Court is the ultimate court of appeal in the UK so it sits in the court hierarchy where the Australian High Court sits in the Australian legal system).

The case involved a decision to withdraw clinically assisted nutrition and hydration from a patient suffering a prolonged disorder of consciousness and whether or not it was necessary, in all cases, to seek court approval before the nutrition and hydration or other life sustaining treatment was withdrawn. Given the nature of the treatment the case has no direct application to paramedics, and given it is an English decision and based on the Mental Capacity Act 2005 (UK) and the European Convention on Human Rights it has little direct application in Australia.

Having said that the Court did look at the common law pre the 2005 Act and the common law between Australia and the UK is at least linked, if not ‘common’. In light of my post More on a patient’s apparent refusal of consent – NSW (July 28, 2018) it is useful to draw something from this decision of the UK Supreme Court. At [21] Lady Black (with whom Lady Hale, Lord Mance, Lord Wilson and Lord Hodge agreed) identified:

… the following three points of importance that are found in the speeches [in Airedale NHS Trust v Bland [1992] UKHL 5] and have relevance not only to the decision in the Bland case, but also to subsequent decisions, including the present one:

i) As has already been seen from In re F (Mental Patient: Sterilisation) (supra), it is unlawful to administer medical treatment to an adult who is conscious and of sound mind, without his consent; to do so is both a tort and the crime of battery. Such an adult is at liberty to decline treatment even if that will result in his death, and the same applies where a person, in anticipation of entering into a condition such as PVS, has given clear instructions that in such an event he is not to be given medical care, including artificial feeding, designed to keep him alive.

ii) Where a person, due to accident or some other cause, becomes unconscious and thus unable to give or withhold consent, it is lawful for doctors to give such treatment as, in their informed opinion, is in the best interests of the patient. Where it is no longer in the best interests of the patient to provide treatment, it may, and ultimately should, be discontinued (see, for example, p 867 of Lord Goff’s speech, with which Lord Keith of Kinkel and Lord Lowry agreed).

iii) The argument that artificial feeding (in that case by nasogastric tube) was not medical treatment at all, but indistinguishable from normal feeding, was rejected. Regard had to be had to the whole regime which was keeping the patient alive, and in any event a medical technique was involved in the feeding.

(Airedale NHS Trust v Bland was a case arising from the 1989 Hillsborough football disaster. Anthony Bland was left in a persistent vegetative state and doctors sought to remove life sustaining treatment. Legal advice said they may be subject to criminal prosecution, so they sought advice and approval from the courts.  For posts on this blog making refernce to Bland’s case see https://emergencylaw.wordpress.com/?s=airedale.  I also note that I wrote my Master of Laws thesis – Euthanasia and Medical-end-of-life decisions in Australia (University of Newcastle, Australia) – on the application of Airedale’s case in Australian law.)

Point (iii) from the list above will have little application to paramedics but (i) and (ii) are relevant and can be summarised, relevantly, as:

  • it is unlawful to administer medical treatment to an adult who is conscious and of sound mind, without his [or her] consent;
  • Where a person, due to accident or some other cause, becomes … unable to give or withhold consent, it is lawful … to give such treatment as …is in the best interests of the patient.

The Mental Capacity Act 2005 (UK) was passed to fill gaps in the UK law about who could make decisions on behalf of people who were not competent to do so.  In a case dealing with provisions of that Act (Aintree University Hospitals NHS Foundation Trust v James [2013] UKSC 67).  In the UK Supreme Court:

Baroness Hale gave a judgment with which the other justices all agreed. She restated, now with reference to the provisions of the MCA 2005, the position as to invasive medical treatment of a patient. Although going over ground covered in the pre-MCA 2005 cases, it is worth setting out the relevant passages in full, since they establish the up-to-date legal context for the questions that arise in the present appeal. She said:

“19.     … Generally it is the patient’s consent which makes invasive medical treatment lawful. It is not lawful to treat a patient who has capacity and refuses that treatment. Nor is it lawful to treat a patient who lacks capacity if he has made a valid and applicable advance decision to refuse it: see the 2005 Act, sections 24 to 26. Nor is it lawful to treat such a patient if he has granted a lasting power of attorney (under section 10) or the court has appointed a deputy (under section 16) with the power to give or withhold consent to that treatment and that consent is withheld; but an attorney only has power to give or withhold consent to the carrying out or continuation of life- sustaining treatment if the instrument expressly so provides (section 11(8)) and a deputy cannot refuse consent to such treatment: section 20(5)…

Baroness Hale underlined further, in para 22, that the focus is on whether it is in the patient’s best interests to give the treatment, rather than whether it is in his best interests to withhold it or withdraw it. She continued:

“If the treatment is not in [the patient’s] best interests, the court will not be able to give its consent on his behalf and it will follow that it will be lawful to withhold or withdraw it. Indeed, it will follow that it will not be lawful to give it. It also follows that (provided of course that they have acted reasonably and without negligence) the clinical team will not be in breach of any duty towards the patient if they withhold or withdraw it.”

To the extent that these passages rely on the Mental Capacity Act 2005 (UK) they are not applicable in Australia, but they do give insight into relevant law.

First the basic requirements for the common law principle of necessity, as described by Lord Goff in In Re F [1990] 2 AC 1 are:

… that, to fall within the principle, not only (1) must there be a necessity to act when it is not practicable to communicate with the assisted person, but also (2) the action taken must be such as a reasonable person would in all the circumstance take, acting in the best interests of the assisted person.

On this statement of principle, I wish to observe that officious intervention cannot be justified by the principle of necessity. So intervention cannot be … justified when it is contrary to the known wishes of the assisted person, to the extent that he is capable of rationally forming such a wish.

The common law, and the Mental Capacity Act 2005 (UK) provide that it is not ‘lawful to treat a patient who lacks capacity if he has made a valid and applicable advance decision to refuse it’. The common law in Australia as well as legislation such as the Medical Treatment Planning and Decisions Act 2016 (Vic), the Advance Care Directives Act 2013 (SA) is the same.  Treatment cannot be given where there is an informed prior refusal.

Legislation in all states and territories also provides for people to appointed to be able to consent on behalf of an incompetent person. In my post More on a patient’s apparent refusal of consent – NSW (July 28, 2018) I discussed the power of the ‘person responsible’ to make decisions and that was in the context of a person who ‘on any other day, displays capacity & competency however today he or she has an infection/affected by drugs/stroke that is causing acute confusion. Today they cannot display capacity or competency…’ This is an emergency condition and the person responsible will be unable to make an informed decision about treatment.  At the point that the paramedics are on scene the patient’s condition could not be properly identified or prognosis made nor could the steps set out in the Act to obtain the consent of the person responsible be followed.  Further, as noted in that post, it is my view that the Guardianship Act 1997 (NSW) is not intended to apply to care provided by paramedics but care provided by medical practitioners. It anticipates a situation such as that in An NHS Trust and others v Y where there has been time to assess the patient, form a diagnosis and prognosis and consider all the various treatment options when determining what treatment will, and will not be, in the person’s best interests.

Under the Guardianship Act 1997 (NSW) a person can appoint an enduring guardian and one of the guardian’s functions is to ‘decide the health care that the appointor is to receive’ (s 6E). The guardian can consent to health care (s 36).  There is no express power to refuse consent but it must be implied, if one can consent one can also refuse consent. A guardian who has been authorised by the NSW Civil and Administrative Tribunal to do so may ‘override the patient’s objection to the carrying out on the patient of major or minor treatment’ (s 46A).

The situation in that earlier discussion (More on a patient’s apparent refusal of consent – NSW (July 28, 2018)) would be different if the person had been under ongoing care for a particular condition and they were now at the end point of that process and either they had made a valid advance care directive (relying on either the common law or statutory provisions in their state or territory) or the ‘person responsible’ was an appointed guardian who in consultation with the treating medical team had made an informed decision for example that the patient was not for resuscitation. In that case the guardian is not so much refusing consent as communicating to paramedics that relevant medical decisions have been made.  This in turn will communicate that treatment which may otherwise be thought to be in the best interests of the patient are not in fact in the best interests of this patient.

Conclusion

The decision in An NHS Trust and others v Y [2018] UKSC 46 is a case from the United Kingdom and therefore not directly relevant in Australia.  Further it was about medical care not emergency care by paramedics so again it is of limited precedent value.  It does however serve to reinforce to fundamental principles of the common law, law that I would suggest is common to both the United Kingdom and Australia and that is:

  • it is unlawful to administer medical treatment to an adult who is conscious and of sound mind, without his [or her] consent;
  • Where a person, due to accident or some other cause, becomes … unable to give or withhold consent, it is lawful … to give such treatment as …is in the best interests of the patient.

With respect to third parties giving directions to paramedics who are responding to an emergency call they are not in a position to refuse consent on behalf of their loved ones.  They cannot be informed or know of the person’s condition or prognosis and cannot give (or withhold) consent as required by the Act.  That was the basis of my conclusion in More on a patient’s apparent refusal of consent – NSW (July 28, 2018).

The situation is different if the person has been appointed, either by the Tribunal or by the patient as an enduring guardian and in consultation with the treating medical team a decision has been made to withhold certain treatment.  Whether we see that as the person refusing consent on behalf of the patient or communicating an earlier refusal is irrelevant. If that prior decision has been made eg that the patient is not for resuscitation, then it should be honoured.