News: the right to refuse life-sustaining treatment in Western Australia

The Supreme Court of Western Australia has clarified the “legal obligations under Western Australian law of a medical service provider which has assumed responsibility for the care of a mentally-competent patient when that patient clearly and unequivocally stipulates that he does not wish to continue to receive medical services which, if discontinued, will inevitably lead to his death.” The patient in question is Christian Rossiter, a 49 year old quadriplegic from Perth in Western Australia who wishes his care provider to cease the provision of artificial nutrition and “general hydration” (while continuing only the hydration necessary for pain control).

In a draft judgement, the court concluded that Mr. Rossiter was competent, having reviewed reports from a number of experts. Martin CJ confirmed the common law right of a competent patient to refuse medical treatment, including life-sustaining medical treatment. To continue to provide such treatment in the face of such a refusal would constitute a battery (in this jurisdiction, see Re B (adult: refusal of medical treatment) [2002] EWHC 429 (Fam)).

The judgement also considered two sections of Western Australia’s Criminal Code:

259 Surgical and medical treatment

(1) A person is not criminally responsible for administering, in good faith and with reasonable care and skill, surgical or medical treatment (including palliative care) —

(a) to another person for that other person’s benefit; or

(b) to an unborn child for the preservation of the mother’s life,

if the administration of the treatment is reasonable, having regard to the patient’s state at the time and to all the circumstances of the case.

(2) A person is not criminally responsible for not administering or ceasing to administer, in good faith and with reasonable care and skill, surgical or medical treatment (including palliative care) if not administering or ceasing to administer the treatment is reasonable, having regard to the patient’s state at the time and to all the circumstances of the case.

[Section 259 inserted by No. 15 of 1998 s. 5; amended by No. 25 of 2008 s. 18.]

262 Duty to provide necessaries of life

It is the duty of every person having charge of another who is unable by reason of age, sickness, mental impairment, detention, or any other cause, to withdraw himself from such charge, and who is unable to provide himself with the necessaries of life, whether the charge is undertaken under a contract, or is imposed by law, or arises by reason of any act, whether lawful or unlawful, of the person who has such charge, to provide for that other person the necessaries of life; and he is held to have caused any consequences which result to the life or health of the other person by reason of any omission to perform that duty.

[Section 262 amended by No. 69 of 1996 s. 10.]

Having concluded that s.262 did not apply, as Mr. Rossiter was able to withdraw himself from the charge of his current care provider, Martin CJ moved on to consider s.259(2), holding that in the circumstances it would be “reasonable” not to continue to administer a treatment refused by the competent Mr. Rossiter, relying on his common law right to refuse treatment.

On the issue of palliative care to be provided to Mr. Rossiter after the discontinuance of artificial nutrition and “general hydration”, Martin CJ held that the defence in s.259(1) would apply: “there is no reason why section 259(1) would not apply to the provision of palliative care to Mr Rossiter even though the occasion for the provision of that palliative care might come about as a consequence of Mr Rossiter’s informed decision to discontinue the treatment necessary to sustain his life.”

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