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1 September 2014
In this matter the issue was whether the Court, in exercising its parens patrie jurisdiction, might make an order that the continuation or commencement of life-sustaining medical measures would be inconsistent with good medical practice. This issue came before the Court following an application by the Cairns and Hinterland Hospital Service (the “Cairns Hospital”) for declarations in relation to JT, a 37 year old man who, previously healthy, had suffered a severe hypoxic brain injury which had left him in an apparently permanent unconscious state. The declarations sought were that it would be in the best interests of JT that certain life-sustaining measures then being applied to him cease, that they would be inconsistent with good medical practice and that their cessation would be lawful. The respondent’s guardian supported this application.
The legal parameters relating to the ability to withdraw life-sustaining treatment are difficult to establish – the struggle lies in drawing the distinction between the case where an unconscious individual requires urgent medication and is taken to impliedly consent to interference with their body and those in JT’s position. In exercising its parens patrie jurisdiction, being that jurisdiction which “empowers the Court to protect those who cannot help themselves”, the question for the Court is whether it is in the “patient’s best interests, and therefore lawful, to have the treatment” which is currently being provided. The logical analogue of this conclusion is that “its withholding or withdrawal would be lawful”. In assessing what is in the best interests of the patient a broad consideration of their welfare, encompassing not only their medical, but also psychological and social well-being, must be undertaken. Further, this test must be applied subjectively, having “regard to the actual state of the person to be protected regardless of how extraordinary that person’s circumstances might be thought to be by references to objectively healthy people,” and the Court must try to place itself in the position of the individual and determine what their preference would have been.
In considering what was in JT’s best interests, the Court first turned to the expert medical testimony given by JT’s physicians. Despite the majority of medical experts testifying that JT was in a persistent or permanent vegetative state, a single practitioner testified that he considered that he was in a minimally conscious state – this practitioner testified that JT could “notice” movement; however, there was no evidence that this movement was being “interpreted”. Given this divergence in opinions the Court was unwilling to conclude that JT was in a persistent vegetative state, however, it noted that the practical reality was really no different and that given it had been more than two years since the injury and there had been no improvement in his neurological functioning, any improvement was unlikely. Against these conclusions, the Court then turned its attention to JT’s broader welfare, taking into account the uncontested evidence of his family and friends that he would not wish to remain in this state. Adopting a subjective approach, the Court concluded that were JT aware of the situation he would not wish it to continue. Given the evidence and the aforementioned conclusions, the Court granted the application.