The ABC is reporting on findings by the Tasmanian coroner following the resuscitation of a chronically ill young woman who took her own life – see April McLennan, ‘Tasmanian hospital fails to honour dying woman’s wishes, coroner findsABC News (Online) (3 November 2020).  You can access the coroner’s findings (not a journalist’s interpretation of them) via the Tasmania Coroner’s Court – Olivia McTaggart, Coroner, Record of Investigation into Death (Without Inquest): Kylie Anne Breen (2 September 2020).

The gist of the facts is that Ms Breen was diagnosed with multiple sclerosis at 21 years of age.  The disease progressed leaving Ms Breen with increased incapacity. On 1 December 2017 Ms Breen took an overdose of medication and opened a gas bottle in her bedroom in order to end her life.

There were also detailed typed and handwritten notes and instructions from Ms Breen indicating that she had ended her own life due to an inability to tolerate her physical condition. In her writing, she said that she had overdosed on a variety of sleeping tablets. She also expressly stated that she had not undertaken an act of suicide but of “euthanasia”.

Ms Breen had, in December 2016, executed an advanced care directive (ACD) that was placed on the hospital’s medical record.

Ms Breen wrote in her ACD, which remained current, that she did not wish to be revived or have her life prolonged if she could not speak, hear, move, or if she should have to be fed through a tube.

Notwithstanding both her ACD and her written notes, her partner, on discovering her in her bedroom commenced CPR and called for an ambulance. Paramedics commenced resuscitation and Ms Breen was transported to hospital where there were further resuscitation efforts. 

Ms Breen’s mother was at the hospital and brought the existing of the ACD to the attention of a nurse. She

… subsequently emphasised to the treating doctor that her daughter did not wish for medical intervention and asked the doctor to sight the ACD for “proof of its existence”. She said that the ACD was then accessed by the doctor and, after further consultation with the family, Ms Breen’s intubation was removed and she passed away.

The coroner noted:

Ms Breen’s initial medical intervention at the LGH arguably took place contrary to her request expressed in the ACD. That document was not initially known or accessed by hospital staff and, when it was sighted, the treating doctor was reluctant to cease medical intervention. However, after further consideration of the terms of the ACD and consultation with the family, active treatment ceased. She then passed away at 1.35am on 2 December 2017.

The coroner did note the difficulty doctor’s face. She said

… it is quite clear that the doctor believed he was acting in Ms Breen’s best interests and in accordance with what was lawfully required. I also observe that, for the purpose of observing the patient’s requirements as set out in an ACD, a treating team will be required to assess the patient’s condition using appropriate means so as to form a considered opinion regarding whether, upon stabilisation, significant recovery is highly unlikely. The records indicate that Ms Breen’s treating team was, at least initially, engaging in this assessment process. The issue is a difficult one, as there may be serious legal consequences for doctors who fail to properly assess a condition, regardless of the existence of an ACD.

Ultimately, with respect to ACD’s, the coroner said:

An Advance Care Directive (ACD) is an individual’s own written wishes regarding health care decisions at the end of life if they lack decision-making capacity at some future time. The Tasmanian Health Service recognises the legal validity of an ACD, which is based upon common law principles concerning the individual’s right to self-determination. This written document helps to provide clarity and accountability for a patient, their family and health professionals. An ACD will be used when the individual lacks decision-making capacity. It is the responsibility of doctors to check for an ACD, take into account the wishes expressed, and to discuss these wishes with the responsible family member/s…

In this case, Ms Breen had completed an ACD and had made her wishes known to her family members, general practitioner and the hospital. Relevantly, Dr Ashby [Clinical Director Cancer, Chronic and Sub-Acute Care, Tasmanian Health Service] was also of the view that systematic and ongoing work with clinicians should occur in this area, particularly to reinforce the primacy of patient wishes in their decision-making as well as to assist with general communication skills regarding end-of-life issues. Dr Ashby indicated that, unfortunately, previous valuable initiatives in this area have not continued and have suffered from a lack of funding.

The coroner recommended:

… that all hospitals in this state take any necessary steps to ensure that a patient’s ACD is readily accessible within the patient’s medical records so that timely compliance with a patient’s wishes as expressed in this document can be achieved when the circumstances arise.

From a correspondent

As I was writing this, a correspondent wrote to ask questions about this decision.  They wrote:

Everything the medical team did seems very reasonable to me, and it seems from the article the Her Honour agrees (which didn’t stop the paper sticking a provocative and arguably misleading headline on the story).  It does raise some interesting questions in regards to refusing treatment after an attempted suicide, however.

I agree with that. Her Honour was not overly critical of the treatment. The strongest criticism was that ‘the treating doctor was reluctant to cease medical intervention’. My correspondent continues:

In practice, people have not been able to refuse treatment after a suicide attempt.  If they attempt to leave they will inevitably be detained under the local Mental Health Act equivalent, or some vague common law argument, on the assumption they’re not of sound mind.

That is indeed problematic. Mental Health legislation allows for the involuntary treatment of a person’s mental illness.  Even if the legislation is applicable the presence of suicidal ideation or even an attempt is not enough to establish the criteria under mental health legislation is met (see Stuart v Kirkland-Veenstra [2009] HCA 15 and Treatment after a suicide attempt (September 7, 2020). Any health professional who thinks they can forcibly treat a person who is thinking of or who has attempted suicide on the basis that suicidal ideation necessarily triggers mental health legislation is being lazy and unethical.  What one has to do is consider the criteria that permits involuntary treatment and whether those criteria exist.  Suicide may be rational, reasoned and not evidence of any disturbance of reason or mood.

My correspondent notes that:

Additionally, at least in some States the law explicitly allows a person to use force to prevent a suicide (e.g. Victorian Crimes Act Section 463B; although this case occurred in Tasmania).   I imagine this extends to using force to prevent the suicide even after the act has occured, such as pulling the person from the river, cutting the rope, or providing medical care.  Even if it does not, it shows a presumption that a person’s decision to commit suicide is not to be considered valid and can be overridden by another person.

I discuss my interpretation of these sections in my earlier post – Treatment after a suicide attempt (September 7, 2020).  These provisions may give medical staff a defence if they are sued for battery, but it does not give rise to a duty to intervene (Stuart v Kirkland-Veenstra [2009] HCA 15) nor does it necessarily make it reasonable to intervene.

My correspondent continues:

In this case the patient completed the ACD 12-months prior to her suicide, but what if the ACD had been completed on the same day as the suicide, or a few days before?  If it was co-signed by a witness and doctor (as required in Victoria at least), then they presumably thought the person was of sound mind even if they attempted suicide a few hours later.

What if a person verbally refused treatment after attempting suicide, but there was otherwise no objective reason to assume they were not of sound mind?  What if the person’s legally-declared decision maker said “they’ve been saying they were going to do this for a long time, it was planned, and they were clear that they did not want to be revived. I refuse treatment on their behalf.”  The argument could even be stretched to cover an implied refusal of treatment with any suicide attempt, but I think there are obvious differences that would make this argument easy to refute.

Discussion

A coroner reviews the events leading to a person’s death. The coroner does not establish liability, the coroner does not set a legal precedent. In this case Ms Breen’s mother was concerned:

…that her daughter was subject to active medical treatment upon arriving at the hospital with an obviously poor prognosis. Mrs Breen was primarily concerned that the initial resuscitation and treatment efforts were contrary to her daughter’s own wishes as expressed in her ACD…

The coroner reviewed the circumstances of Ms Breen’s death to address those concerns.  The coroner’s investigation was conducted without an inquest that is without formal hearing but on the various documents and report.

Critically even though ‘Ms Breen intended to end her life by ingesting large quantities of medication’ the Coroner did not suggest that this diminished her right to exercise control over her health care nor to have her wishes respected.  The Coroner said ‘She made a rational decision to do so due to her constant pain combined with the fact that her health was rapidly declining to the point of requiring care at home. We don’t know what the Coroner would have said if she did not think the decision was rational. With those limitations in mind the discussion at least affirms that legally speaking, the desire to end one’s life does not always equate with mental illness nor does it deprive a person of their rights.  

The issue that this coroner was concerned about was giving effect to ACD’s.  Her Honour’s conclusions were based on the fact that it was Ms Breen’s mother who had to draw the attention of hospital staff to the ACD even though it was on her clinical record. There is no value of ACDs if they are not going to be identified and relied upon.  If consent and respect or patient autonomy are really important, they are really important at the time of life and death decisions.

I think that the issue of whether it was suicide (or voluntary euthanasia) is largely irrelevant.   If a person has an ACD saying for example that they don’t want to have their life maintained in a persistent vegetative state or with chronic brain injury and associated loss of capacity, it does not really matter how they got there.  If a person shot themselves in the head but did not die but would be permanently brain damaged and unconscious, keeping them alive because this was a suicide attempt rather than say a murder attempt makes no sense and would be in essence punishing a person for trying to take their own life. Their wishes for treatment in the circumstances in which they find themselves has to be relevant.

But the question is what are the circumstances?  As my correspondent notes

As a critical care doctor myself, I would also point out that at this early stage it would probably not be possible to determine if her condition was bad enough to meet the threshold in the ACD that she “could not speak, hear, move or she had to be fed through a tube.”  It takes time to reach this conclusion.)

The coroner also agreed, some treatment has to be given, including active resuscitation, to determine whether or not the criteria set out in the ACD apply or not.  But once that has been determined what is the relevance that they got their by self harm?

This is no doubt difficult. We all recognise suicide as a tragedy when otherwise healthy people take their own lives because of pressures or mental illness that we don’t understand.  We want to reject their implied refusal of treatment and see them treated in the hope that with care they can see that whatever was happening in their lives – whether that’s external or internal forces – can be corrected and they will see value in their ongoing life.  In case like Ms Breen where she has suffered from a debilitating disease for over 20 years we can claim to ‘understand’ her position and her decision.  But a person’s right to refuse treatment can be based on reasons that others find foolish, or on no reason at all. Drawing the line is not doubt difficult and I would suggest legally unclear.

To return to my correspondent’s question

… what if the ACD had been completed on the same day as the suicide, or a few days before?  If it was co-signed by a witness and doctor (as required in Victoria at least), then they presumably thought the person was of sound mind even if they attempted suicide a few hours later.

We cannot help but want to know, and judge, the reasons for the decision. If a person is assessed by a doctor and lawyer and both agree the person has capacity and understanding and notes that they are going to take their life in circumstances such as those Ms Breen found herself in, many would support that and that the law should allow that to occur. It would seem that the ACD would be easy to confirm and honour; but that would not be the case if the patient was 21 and wanted to take their own life as a protest, or they just did not see the point of living in this world.  How the law allows others to make those judgments is not clear.  

It seems to me that laws (including common law) allowing the use of force to prevent a suicide allow health professionals to make a choice. It gives them a defence to any civil action but it does not compel action. A professional, ethical decision maker has to look at all the circumstances and not simply conclude that ‘because this was a suicide attempt I must try to reverse it’ particular where that reversal is impossible. If their attempt is such that their injuries and prognosis is catastrophic, or where the underlying conditions (such as MS) cannot be relieved, the decision still has to be to treat both in accordance with the patient’s wishes and in their best interests.

Conclusion

A coroner’s inquiry does not set a legal precedent. This inquiry was to consider whether the treatment at the hospital had been appropriate. The coroner found that it was. She said it was arguable that the ‘initial medical intervention … took place contrary to her request expressed in the ACD’, she did not reach a firm conclusion on that point. She noted that the doctor’s were acting in what they believed was the patient’s best interests, that they had to assess the patient’s condition to determine if the circumstances in the ACD were present and that after consideration of the ACD treatment was withdrawn. None of that is critical of the doctors or the hospital.

The coroner was critical that the treating team misunderstood the impact of an earlier ‘Medical Goals of Care’ document that related to an earlier, specific admission and that ACD was not more promptly identified and considered.

IF there is anything to come from this decision it is the fact that Ms Breen did act to take her own life did not mean that her wishes were irrelevant.  Once it was determined if her life was prolonged she would ‘not speak, hear, move, or … she should have to be fed through a tube’ then her ACD had to be honoured and the fact that she had arrived at that position by her own hand was irrelevant.