Health law 3

Question 1

Gillick competent children

Answer 1

• Parent or guardian or caregiver with authority (court order, testamentary guardianship) may consent in best interests of child and if not illegal;
• One parent generally sufficient (parent who is present) unless parenting order issued by court limits decision-making to one parent (separation/divorce);
• If parents in dispute court can intervene to resolve (vaccination etc);
• ‘Rights’ cede to the child/young person as capacity develops;
• A Gillick competent person has ‘sufficient understanding and intelligence to enable him or her to understand fully what is proposed.’

Question 2

Parens patriae

Answer 2

• Blood products (Jehovah’s witness)
• Chemotherapy
• Anorexia

Question 3

children and special procedures

Answer 3

• Secretary Department of Health and Community Services (NT) v JWB and SMB (Marion’s case) (1992) 175 CLR 218
• Some treatment beyond the scope of parent’s power to consent and requires court authorization (procedural safeguard):
  
  • Non-therapeutic sterilization;
  • Termination of pregnancy (if child not competent);
  • Indefinite detention (NSW).
• Court approval no longer required for gender affirming hormone treatment if young person is Gillick competent and young person, parents/guardians, and treating practitioners agree.

Question 4

adults with impaired capacity

Answer 4

• Dementia and other cognitive issues;
• Mental illness, acquired injury, intellectual disability;
• Capacity can be variable.
• Capacity assessment occurs:
  
  • In relation to a specific health decision;
  • In relation to whether a substitute decision-maker for health or more generally is required in the short, medium, or long term;
  • As requested by a lawyer before legal documents are executed (wills, powers of attorney etc).
    Presumption of capacity (rebuttable);
• It relates to a decision time and task specific;
• If capacity is variable should be sought at the most optimal time.
  Consider: language use, speed of discussion, presence of familiar
  people, places etc, and impact of culture, English as a second
  language etc

Question 5

how to assess capacity

Answer 5

• Receive and understand relevant information
• Retain and appreciate the information
• Recall and communicate consistent choices
• Apply the information in reasoning, select
  between options, evaluate benefits and risk
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Question 6

withdrawing nad withholding

Answer 6

Withdrawing & Withholding Treatment
Lead common-law case Airedale NHS Trust v Bland [1993]
AC 789.
* Withholding or withdrawing is an omission to do
something rather than an act;
* Only criminal liability for a omission if there is a duty to
act in a particular way and they do not;
* A doctor only owes a duty to provide care that is in that
patient’s best interests;
* If treatment is futile (no therapeutic purpose and no
possibility of improvement) it is not in the patient’s best
interest.

Question 7

another case of withdrawing vs withholding

Answer 7

Messiha v South East Health [2004] NSWSC 1061
* no prospect of significant recovery, treatment regarded
as futile except for briefly prolonging life, treatment
burdensome and intrusive;
* Courts are not bound to give effect to treating team’s
or medical opinion.
Northridge v Central Sydney Area Health Service (2000) 50
NSWLR 549
* Premature decision by treating team to withdraw
treatment;
* Where doubt the court can protect the person.

Question 8

withdrawing and withholding for competent adults

Answer 8

• Competent adults can refuse life-sustaining treatment, even artificial
  hydration and nutrition (including through an advance directive if
  specific enough and no reason to suspect views had changed).
• Acceding to patient’s decision could face criminal prosecution for
  failing to provide the necessaries of life (manslaughter). But if don’t
  accede could also face civil claim for battery/trespass to the person.
  Consent is a defence.
• ‘A gilded cage is still a cage.’ Lady Hale. P v Cheshire (2014).
• See, for example, Brightwater Care Group Inc v Rossiter (2009) 40 WAR

Question 9

withdrawing and withholding in competent chidlren

Answer 9

Gillick competent children - refusal of life-sustaining
treatment may be overridden:
* By the Court e.g. X v The Sydney Children’s Hospitals
Network (2013) 85 NSWLR 294, or
* By legislation in some states/territories especially with
regard to blood transfusions.

Withholding and withdrawal of life sustaining
treatment: children
Children - refusal of life-sustaining treatment by
parent may be overridden:
* By the Court e.g. Re Heather [2003] NSWSC 532 or,
* By legislation in some states/territories especially
in regard to blood transfusions.
Children - refusal of life-sustaining treatment by
parents may be sustained if in best interests, e.g. Re
Baby D (No. 2) (2011) 45 FamLR 313.

Question 10

withholding and withdrwing for adults without capcity

Answer 10

• Common law – Bland – applies;
• Depends on the language of the legislation and/or
  language of power of attorney;
• Some acts cannot be refused by a substitute in
  some jurisdictions i.e. South Australia cannot
  refuse pain relief or food and liquids by mouth;
• In Qld doctor must consider if decision to WW is
  consistent with good medical practice;
• Must consider any requirements in legislation (e.g.
  patient’s previously expressed wishes etc).
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  Demand for Treatment & Futility
  TS & DS v Sydney Children’s Hospitals Network
  (Mohammad’s case) [2012] NSWSC