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
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.
[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.
Good content, but unfortunately, a good blog must be continually maintained with new material
Posted by: Bill Gates | 13 October 2008 at 11:44 PM