The Lawyer Blog

The Right to Die in Australia - Refusing treatment

Last week we discussed issues concerning what constitutes a competent patient and whether a patient has the right to refuse treatment. This week will examine the right of the patient to refuse treatment more thoroughly and we will also examine sentiment in other jurisdictions to gauge popular opinion on a broad scale. This post will also make some observations on Australia current landscape concerning the right to die and options for us as we move forward.

 

Refusing treatment

 

In Australia there is no direct authority on the right to refuse treatment, but the author posits that given the weight of common law authority in other jurisdictions is seems reasonable to conclude that an Australian right to refuse treatment would allow a patient to make decisions which would result in their death.[1]

 

There are a number of cases the author would suggest, that could prove convincing to an Australian Superior Court in providing common law authority on refusing treatment.   

 

In St. George’s NHS Trust v S,[2] Judge LJ stated that: ‘even when his or her own life depends on receiving medical treatment, an adult of sound mind is entitled to refuse it. This reflects the autonomy of each individual and the right of self-determination…’.[3]

 

In Malette v Shulman,[4] a case involving a blood transfusion given to an unconscious card-carrying Jehovah’s Witness, Robins JA stated: ‘competent adults as I have sought to demonstrate, are generally at liberty to refuse medical treatment even at the risk of death. The right to determine what shall be done with one’s own body is a fundamental right in our society. The concepts inherent in this right are the bedrock upon which principles of self-determination and individual autonomy are based…’.[5] 

 

Importantly in McKay v Bergstedt,[6] a case about a mentally competent quadriplegic who wished to be disconnected from his respirator, the Court sought to balance the State’s interest in preserving life and preventing suicide, against Bergstedt’s common law right to self-determination – this was undertaken for decisional purposes only, as Bergstedt died prior to the hearing.[7] Steffen J found that Bergstedt had no intent to take his own life, and thus did not commit suicide, although he realised that death would be the effect of his decision.[8] Furthermore the Court confirmed that the State’s interest in preserving life will generally be outweighed in situations involving adults who are (1) competent; (2) irreversibly sustained by artificial life-support systems; and (3) enduring physical and mental pain and suffering. His Honour indicated that given Bergstedt’s situation he enjoyed a preeminent right under common law to withdraw his consent to his continued medical regime of attachment to a respirator.[9]

 

The author recognises that the right to self-determination is not absolute and that a number of State interests may override an individual’s right to self-determination.[10]  A detailed critique of the State’s ability to override or interfere with an individuals right to self-determination can be found in McKay v Bergstedt, and Cameron Stewart’s article titled “Advance Directives, The Right To Die and the Common Law: Recent Problems with Blood Transfusions”.[11] In summary, the author holds that common law authority from other jurisdictions would prove very persuasive in finding that there is a right (at common law) to self-determination in Australia. 

 

In concluding the author recognises that there is no legal authority that exists in Australia on the right die. Nonetheless, the author holds that the weight of authority from other common law jurisdictions clearly indicates that an Australians right to refuse treatment would allow a competent patient to make decisions which would result in his or her death.

 

So the question now becomes - what type of catalyst would be required for the right to die to receive judicial recognition under the common law of Australia?

 

The author asserts that this could be achieved by enacting an Australian Bill of Rights Act, of which the New Zealand Bill of Rights Act 1990 could provide a comparative framework.[12]

 

Like its New Zealand counterpart, an Australian Bill of Rights Act would need to contain a medical treatment provision stating: ‘Everyone has the right to refuse to undergo any medical treatment[13]…and that the withholding or withdrawing of treatment performed in recognition of that right is exempt from criminal liability’.[14] Given the statutory status held by a Bill of Rights Act, any legislation that proves to be inconsistent with the Act should be declared invalid, and furthermore, when a Court is involved in interpreting any enactment, the Court is to prefer a meaning that is consistent with the Bill of Rights as to any other meaning.[15]

 

In essence an Australian Bill of Rights would aid in the promotion of an individuals right to self-determination and individual autonomy.

 

Whether in time Australia will develop its own case law either through common law or legislative imperatives, the qualifier for supporting a right to die is that not all rights are absolute, and the competing and conflicting interests in our society will still require careful and independent judicial review of any legislation, particularly when this involves the refusal of medical treatment. Furthermore, judicial and political courage will be required, to ensure that Australia’s progression down the right to die path is mindful of both majority and minority interests. 

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[1] Ibid.

[2] [1998] 3 All ER 673 (CA) at 685.

[3] I. Kennedy & A. Grubb, op. cit., p.1907.

[4] (1990) 72 OR (2d) 417 at 432.

[5] I. Kennedy & A. Grubb, op. cit., p.1907.

[6] (1990) 801 P 2d 617 (Nev Sup Ct).

[7] I. Kennedy & A. Grubb, op. cit., p.1909.

[8] Ibid., p.918.

[9] Ibid., p.1910.

[10] C. Stewart, op. cit., 161 at 167.

[11] Ibid., 161 at 167-9.

[12] G. Griffith, “A Bill of Rights for NSW?”, (2000), Constitutional Law and Policy Review, 57 at 58.

[13] New Zealand Bill of Rights Act 1990.

[14] M. Otlowski, Voluntary Euthanasia and the Common Law, (Oxford: Oxford University Press, 2000), p.81 in LAW521: Health, Law & Ethics – Materials for Weeks 5 – 8, p.210-11.

[15] G. Griffith, op. cit., 57 at 58.

The Right to Die in Australia

This opinion will initially deal with Australia’s common law position on whether there is a right to die. The author will then address a competent patient’s refusal of treatment, while the patient remains in a competent state. In concluding, the paper will provide a recommendation of how Australia might consider approaching the right to die in the future.

 

So how does one define a right to die? and what constitutes a competent patient?

 

In the Matter of a Ward of Court,[1] Hamilton CJ gave definition to the notion of a right to die by stating: ‘the process of dying is part, and an ultimate inevitable consequence, of life, the right to life necessarily implies the right to have nature take its course and to die a natural death and, unless the individual concerned so wishes, not to have life artificially maintained…..merely to prolong life…’[2] – the author posits that this could be viewed as a form of self-determination, that is our right to die is determined by our right to live.      

 

With regards to what constitutes a competent patient, Thorpe J in Re C (adult: refusal of medical treatment)[3] stated a three stage competency test that comprises of the patients ability to: (1) take in and retain treatment information, (2) to believe it and (3) to weigh that information, balancing risks and needs – this test would aid in establishing a patient’s capacity or competency to decide on treatment (or not).[4]

 

The right to die in Australia

 

In Australia it is fair to say that substantive issues concerning the scope of the right to die at common law have never really been addressed.[5] The common law in Australia recognizes the right of a patient to self-determination,[6] but as yet there has been no major judicial statement on the power to refuse treatment in Australia, even though the opportunity did present itself in Qumsieh v Guardianship & Administration Board & Pilgrim.[7]  

 

This opinion is supportive of the view that a patient who exercises their right to refuse treatment, is in effect exercising part of a broader right to self-determination, which is a substantial part of what is often meant by the term the right to die.[8] In Schloendorf v Society of New York Hospital,[9] Cardozo J stated: ‘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…’.[10]

 

This right to self-determination has been recognised in common law countries including the United States,[11] United Kingdom,[12] Canada[13] and Australia.[14]

 

In essence the right to refuse treatment becomes a right to die when a patient refuses treatment that is necessary to support life. In relation to competent patients, such a decision must be honoured regardless of the reasons for such a decision,[15] even when the decision may appear (for whatever the reason) to have been “badly” made.[16] In Re T (adult: refusal of medical treatment),[17] Lord Donaldson MR succinctly stated: ‘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’.[18]

 

Next week we will be discussing cases involving the right of a patient to refuse treatment. This puts a slightly different angle on the right to die argument as a person who chooses to refuse treatment is indirectly exercising a right to die. These cases shed light on the fact that in Australia there has be no definitive judgement to guide people in this grey area of the law.

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[1] [1995] 2 IRLM 401 (Ir Sup Ct).

[2] I. Kennedy & A. Grubb, op. cit., p.1907.

[3] [1994] 1 All ER 819 (Fam Div) (‘Re C’s Case’).

[4] I. Kennedy & A. Grubb, op. cit., pp.623-4.

[5] C. Stewart, “Advance Directives, The Right To Die and the Common Law: Recent Problems with Blood Transfusions”, (Vol.23 1999), MULR 161 at 183.

[6] Secretary of the Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 at 232-5 (‘Marion’s Case’).

[7] [1998] VSCA 45 (‘Qumsieh’s Case’).

[8] C. Stewart, “Qumsieh’s Case, Civil Liability and the Right to Refuse Medical Treatment”, (Vol.8 2000), Journal of Law and Medicine 56 at 58.

[9] 105 NE 92, 93 (NY, 1914).

[10] C. Stewart, op. cit., 161 at 165.

[11] Perna v Pirozzi, 457 A 2d 431 (NJ, 1983).

[12] Airedale NHS Trust v Bland [1993] AC 789 (‘Airdale’s Case’); St George’s Healthcare NHS Trust v S; ex parte S [1998] 3 All ER 673.

[13] Nancy B v Hôtel-Dieu de Québec (1992) 86 DLR (4^th) 385.

[14] Marion’s Case; in C. Stewart, op. cit., 161 at 165.

[15] C. Stewart, op. cit., 56 at 59.

[16] Sidaway v Govenors of Bethlem Royal Hospital [1985] AC 871 at 904-5.

[17] [1992] 4 All ER 649; (1992) 9 BMLR 46 (CA); and [1992] 2 Fam 458 at 460 (‘Re T’s Case’).

[18] C. Stewart, op. cit., 56 at 59.

The Importance of Prenuptial Agreements

On Sunday 8 July 2007 an article appeared in The Sun Herald entitled “More couples opting for prenuptial agreements”. Some parts of the community seem divided as to whether a prenuptial agreement is required. Some trust in love and others trust prudence. A prudent individual whether male or female realises marriage statistics today state approximately 52% of all married couples remain married and 48% of all married couples divorce. In other words the short answer appears to be that almost one in two people who marry will divorce at some time during the course of their life. One of the most unfortunate things about this is that although there are a number of early divorces the vast majority of these occur to people who have been married for a period in excess of 10 years. As a consequence this is at a time when young people’s careers are accelerating and therefore the future is pregnant with opportunity. For older couples who have been married in excess of ten years they have probably accumulated real assets and are subsequently face a substantial risk in the case of a matrimonial breakdown.

Obviously there are a number of young couples who recognise the risk and take preventative action. Through our practices in Sydney there has been a fourfold increase in clients who are seeking the benefits conferred on them by a pre-nuptial agreement. It does not matter whether these individuals are younger or older they have one thing in common they wish to protect themselves against the uncertainty of the future which often comes about due to either an early union or after they have experienced divorce and wish to protect their individual assets. This applies to both men and women who have gone through a divorce irrespective of whether it is amicable or otherwise. For older couples they realise that the further depletion of their assets, although it may not leave them destitute, will certainly compromise their living standards in future.

Sometimes clients baulk at the cost of a prenuptial agreement because they fail to recognise the skill, knowledge and expertise required of a legal practitioner who is drafting it or alternatively of the legal practitioner who is called upon to give a certificate of independent legal advice to the other party who is to co-sign it. There is absolutely no doubt at all that a properly drafted prenuptial agreement which addresses the individual circumstances of a party seeking the benefit of it is a great investment. One of the major reasons for this is that where there the agreement is properly drafted it effectively impedes the jurisdiction of Family Law Court leaving the document to be construed according to contractual principles. Provided this document is clear and unambiguous then there is little that any court can do other than to give force and effect to it. Yes there are circumstances in which a prenuptial agreement can be overturned and therefore they need to be bespoke.

There are very few family law lawyers who do not believe in prenups which are a class of binding financial agreement. Prenups are really only there to deal with the division of property and spousal maintenance although some times couples try and extend them to become lifestyle agreements. Lifestyle clauses are not enforceable. It is important to keep in mind that prenuptial agreements need to be executed before a person marries and if a person fails to marry they have no force or effect at law.

Often clients recognise the need to have a prenup but sometimes leave it almost to the very end before they do anything about it. They think the whole process can be completed within a very short time for example 24/48 hours. This couldn’t be further from the truth and even if it were true, a prudent individual wouldn’t leave it until the last moment as they may not be able to find a lawyer who is available to attend to their matter at the last moment. Anyone contemplating a prenuptial agreement should ensure they instruct their lawyer at least a couple of months prior to the date fixed for their wedding to deal with it so that it is out of the way prior to their nuptials.

It should not be forgotten the prenuptial agreement is one of the most valuable documents ever executed by any person during the course of their lifetime. Although some individuals are likely to baulk at the cost of a properly drafted prenuptial agreement its cost pales into insignificance when compared with the likely costs associated with a property settlement and spousal maintenance at some future time should a marriage fail. As the old saying goes never be penny wise and pound foolish. Should you have a different view it would be appreciated if you would share it with us as balanced commentary is what it is all about

Insurance Law and the Impact of the Newcastle/Hunter Region Storms

Breaking News indicates that the number of storm claims received on the Central Coast/Newcastle and other regions has exceeded 20,000 and is climbing. As with all major catastrophes this presents only part of the picture as there are both insured and uninsured losses. Insurance market statistics indicate that whilst there is substantial underinsurance the home buildings percentage more than doubles when it comes to contents. On top of this most businesses normally only insure for material damage losses and the application of excesses or deductibles can be of assistance to insurers mitigating losses. Although the business market is fairly well insured when it comes to property the same cannot be said with respect to business interruption or consequential loss insurance. Anecdotally the vast majority of businesses do not have business interruption insurance and some commentators have said that up to 95% of all businesses have not availed themselves of this type of insurance protection. It is commonly said by insureds that they do not need it, they do not understand it, it is too expensive and it is unlikely that they will need to claim on it. Unfortunately with every disaster many businesses fail because they failed to safeguard their income, revenue or turnover. Businesses cannot survive with cashflow.

Although underinsurance or the lack of insurance is a major problem for the community in both good and bad times its importance is critical in times of natural disasters including storms and cyclones. Every time there is a major storm either general or localised flooding is a problem. It becomes a problem for a number of reasons, the major one being that flood cover is not normally available on both personal and business lines products. Where it is, the extent of it is normally circumscribed by limiting it to either 5% or 10% of the sum insured or alternatively by only providing for flash flood with a policy limit perhaps $5,000 or $10,000 depending upon the particular insurer involved. In times of natural disasters insurers do the very best they can to try and protect their policy base but like all other businesses they are accountable to their shareholders. What this really means is, that in most major storm scenarios, insurers will take the point as to whether the damage caused was a direct result of storm and tempest or alternatively is due to flood. One of the reasons why they have to do this is because they have never received a risk weighted flood premium as normally all that is covered is storm and tempest and/or rainwater. As a result many policy holders affected by these events deny that their claim was caused by flood and was purely and simply the direct result of rainwater penetration. Interestingly, there is a different test applied for damage to buildings as against damage to contents for personal lines insurance.

Although some commentators have indicated that some insurers will pay flood claims not all will and it can be expected that this will be a hotly contested issue in some quarters. As with all major past storm events and/or catastrophes a number of arguments often arise, one being that there was genuine storm damage caused prior to the time flood took effect and as a result they are entitled to claim for this proportion of the loss. This argument has validity in some cases and given the nature and extent of the damage caused by the current disaster, it can be expected to be relied upon by any number of policyholders. Obviously, insurers are in the business of trying to pay claims but sometimes are unable to do so, because after all the relationship between the parties is largely dependent upon the policy which has been issued. Often times, claims are denied following major storm events or catastrophes as the exact circumstances of what occurred is not properly understood by the insurer as resources are often stretched to breaking point and it is inevitable that this will result. Where insureds encounter these difficulties irrespective of the nature of the insurance affected, whether a brokered or non brokered risk, they should seek the services of a competent legal adviser to ensure that their rights are properly protected. Obviously something maybe overlooked by insurers when confronted by the magnitude of the tasks which they are forced to assume when catastrophes occur and often they are prepared to entertain claims which are properly presented to them where circumstances indicate they may have been in error.

There is no doubt that insurers seek to rely upon their own internal disputes resolution processes and the insurance ombudsman service to try and deal with disappointed policyholders. The problem with this is not the process or whether it may or may not be subjective or objective but rather that the information which is held by the insurer leads them to a view this claim should be denied as it does not fit within the scope of the policy cover because it is expressly excluded. Our view is that whenever this happens to you, you should try and do the best you can but if you are not being listened to and the damage is substantial then you should consider your options, one of these should be to obtain proper legal advice from an insurance lawyer who fully understands your predicament irrespective of the type of claim and knows how to address the issues. Should anyone have a different view about any of these matters your comments would be appreciated?

Creating The Lawyer Blog

From concept to conception, we have planned out our new lawyer blog and are in the process of implementing the design and structure of the blog.

This is going to take quite a bit of work just to set up the site, but we hope to have this finished sometime during next week so that the team at LAC can begin our posts.

Then the real work will begin....