Today’s correspondent asked

Do you agree that “In all but extraordinary circumstances, a patient who refuses treatment after a suicide attempt can and should be given life-saving treatment, under either mental health legislation or the common law concept of necessity”?

I think ‘extraordinary circumstances’ may be when the patient has a terminal illness or chronic illness AND has capacity to refuse treatment? What do you think?

The question is based on the fourth dot point in the abstract to the paper:

Christopher J Ryan and Sascha Callaghan ‘Legal and ethical aspects of refusing medical treatment after a suicide attempt: the Wooltorton case in the Australian context’ Med J Aust 2010; 193 (4): 239-242, doi: 10.5694/j.1326-5377.2010.tb03880.x  (Published online: 16 August 2010).

I do not agree with either of the propositions as set out in the question. 

If we accept that people have the right to make their own choices about the value of their life and the treatment that they want, why can’t people who attempt suicide also refuse treatment? One might say that a suicide attempt is the ultimate expression of wishes. If that’s true necessity cannot apply where treatment is contrary to the known wishes of the person (discussed further, below). 

Second what treatment are we talking about? If a person has attempted suicide without any success- a poor attempt at cutting one’s wrists or a very small overdose of drugs that were never going to be fatal, then the person retains the right to consent or refuse consent. In that case the mental health legislation may be relevant, but necessity is not. If the attempt is more effective and so the treatment actually required is lifesaving treatment to deal with traumatic injuries or a drug overdose that has left them insensible, how can the mental health legislation be relevant?

Necessity

Necessity may apply where the person cannot at that time communicate and one might infer (as I understand the literature would discuss) that a suicide attempt is not necessarily evidence that the person wants to die, but that they want their symptoms to abate and they cannot think of how else to achieve that outcome. So one might infer that their suicide attempt is not, in fact, an expression that they don’t want treatment where they did not know what treatment was available or how to access it. One might, in all the circumstances, also infer that indeed they were not competent to make the relevant decision. I’m sure if anyone sued for battery a court would bend over backwards to find that sort of justification, but it could be complex.

Take for example a person who has been held up as a ‘pillar of the community’. A well-established reputation for ‘doing good’ who has enjoyed the good life but with a consistent life story of atheism and a belief that life is for the living now and that after death, there is nothing. A person has come out of his history alleging that 40 years ago he committed sexual offences against that person as a child. The man in question may think ‘I’ve led a good life, I’ve had fun. I don’t want to face the damage to my reputation and I see no value in living the last years of my life in gaol.’ He determines to take his own life and leaves a suicide note confirming that he intends to die and refuses all treatment. He completes an advance care directive with the assistance of a doctor and a lawyer and has been seeing a mental health practitioner who has never suggested that he is demonstrating symptoms of mental illness. Surely that direction is binding?

If it’s not, but if you accept that a person who ‘has a terminal illness or chronic illness AND has capacity to refuse treatment’ can refuse treatment after a suicide attempt then you are making judgments not about the person’s capacity but about the value of their decisions – it’s either a quality of life decision or it’s a decision that some suicides are ok but others are not and that smacks to me of medical paternalism. Who’s to say that ‘it’s perfectly reasonable that a person with a terminal or chronic illness would kill themselves, but that a person who is about to lose all that is of value to him is not acting reasonably’?

When I did my LLM the literature tried to argue that there is a moral difference between refusing lifesaving treatment and active steps to suicide so people tried to argue that the person who refuses treatment is not a suicide. If that is a valid distinction it may allow the person who ‘has a terminal illness or chronic illness AND has capacity to refuse treatment’ to indeed refuse treatment for their condition but would not apply to treatment for their drug overdose. 

Mental health legislation

In Stuart v Kirkland-Veenstra [2009] HCA 15 French CJ said (at [41])

Unless the person met the criteria set out in s 8 [of the then Victorian Act], including that of mental illness, there was no basis for further coercive action following upon examination by the practitioner. These provisions of the Act give nobody the legal power to prevent a person from taking his or her own life…

Prima facie, a person who refuses treatment after a suicide attempt but who is still conscious and able to consent to treatment can continue to refuse treatment. For mental health legislation to apply (using NSW law as an example) the paramedics would have to be satisfied that the person was suffering from a mental illness that is (Mental Health Act 1987 (NSW) s 4, definition of ‘mental illness’):

(a)           delusions,

(b)          hallucinations,

(c)           serious disorder of thought form,

(d)          a severe disturbance of mood,

(e)           sustained or repeated irrational behaviour indicating the presence of any one or more of the symptoms referred to in paragraphs (a)-(d).)

But if you think that it’s reasonable not to treat a person who has attempted suicide and who ‘has a terminal illness or chronic illness AND has capacity to refuse treatment’ then you must accept that suicide is not, on its own, proof of either (c) or (d) above, nor is the decision necessarily irrational. 

If the suicide attempt has been such as to render the patient incompetent (‘…the treatment actually required is lifesaving treatment to deal with traumatic injuries or a drug overdose that has left them insensible…’) then I cannot see how the mental health legislation is relevant.  Assume that there is a hospital with an emergency department and an acute mental health unit with its own emergency department. If we take s 20 of the NSW Act it says ‘An ambulance officer who provides ambulance services in relation to a person may take the person to a declared mental health facility …’ If the person has self-inflicted trauma, the paramedics are not planning to ‘take the person to a declared mental health facility …’ so s 20 has no role to play (and see Mentally ill, mentally disordered, mentally disturbed or just injured and in need of medical care in NSW? (August 27, 2017). The Mental Health Act is not about providing involuntary treatment for a condition that a person refuses because of their mental illness, it’s intended to provide involuntary treatment of the person’s mental illness (and see Part 3 of the NSW Act that deals with providing ‘other’ treatment to involuntary patients but that relates only to surgery but not other procedures). 

Using force to prevent suicide

I think a better argument is that there is both a common law and statutory power to use force to prevent a suicide. For example, the Crimes Act 1900 (NSW) s 574B says:

It shall be lawful for a person to use such force as may reasonably be necessary to prevent the suicide of another person or any act which the person believes on reasonable grounds would, if committed, result in that suicide.

In Stuart v Kirkland-Veenstra, French CJ said (at [45]):

State intervention to prevent suicide may now be seen, at least in part, as the exercise of a parens patriae role and the interest of the State in protecting the life of its own citizens …

Gummow, Hayne and Heydon JJ talked about the legislation allowing the use of force to prevent a suicide (including the legislation in NSW, SA, the ACT and the NT).  With respect to the Victorian provision (Crimes Act 1958 (Vic) s 463B) they said (at [78]):

It is to be noted that provisions like s 463B of the Victorian Crimes Act did not permit apprehension or arrest of a person who had threatened or was threatening suicide. The provisions authorised the application of force to prevent suicide.

What does it mean to prevent a suicide? We may accept that stopping someone before they jump off the cliff or step off the stool whilst there is a noose around their neck is ‘preventing a suicide’.  But if the aim of suicide is to die then preventing them from dying is preventing a suicide and that is justified not by trying to find that the suicide was mentally ill but because the state has an interest in preventing suicide.  But if Gummow, Hayne and Heydon JJ are correct it may not warrant forced treatment of a person who, even after their attempt, retains competence and who is not displaying the symptoms of a mental illness listed above.  If they are not at risk of dying the use of force cannot be justified just because they did attempt suicide and may do so again in the future. 

Conclusion

I think Stuart v Kirkland-Veenstra makes it clear that people are allowed to take their own life if they want to, and there is no authority to prevent them unless the mental health legislation applies, and it doesn’t apply just because they are contemplating or have attempted suicide.

I think that if a person has attempted suicide and are not at the time competent to give or refuse consent any court would try to find that necessity applies and in any event the right to use force to prevent a suicide could be argued as authorising treatment to save their life. But if a person has attempted suicide but, notwithstanding that attempt, they remain competent, they are not at risk of dying from their attempt and are not displaying symptoms of mental illness then there is no power to detain and treat them without consent; just as Senior Constable Stuart had no power nor duty to detain Mr Veenstra.  

My conclusion would be ‘a patient who refuses treatment after a suicide attempt and who is at risk of dying (ie if left untreated, the suicide attempt will be, or there are reasonable grounds to believe it will be successful) may be given life-saving treatment, under the common law and statutory power to use force to prevent a suicide’.  Noting, as Ryan and Callaghan do that the use of these provisions in ‘the case of an otherwise valid refusal of medical treatment is not established’.

Do I think they ‘should’ be given that treatment? That is much more problematic but if someone does think the treatment ‘should’ be given then that has to apply to everyone including a person with ‘a terminal illness or chronic illness AND has capacity to refuse treatment’ otherwise health professionals are getting into the judgement of which decisions ‘make sense’ to them and not the patient. As we can see with the COVID response the states are taking very seriously the idea that all lives are valuable and are going to extreme measures to protect the lives of the elderly with serious co-morbidity. If the prevention of suicide is ‘the exercise of a parens patriae role and the interest of the State in protecting the life of its own citizens …’ then the state (except in those states that have legalised physician assisted suicide) has the same interest in everyone’s life. I cannot see any reason to add the ‘extraordinary circumstances’ exception suggested.

The paper

I note that the conclusions I’ve reached are very similar to those reached by Ryan and Callaghan. Relying on the 4th dot point of the abstract misses the other three dot points and their conclusion (emphasis added) ‘ clinicians will be acting ethically and within the law if they provide treatment to such patients, unless the patient cannot be treated under mental health legislation and there is no doubt that the patient’s refusal of treatment is competent.’