Respect for autonomy; or the right to die?
Recent cases have drawn attention to the issue of individual
autonomy and what is sometimes referred to as 'the right to
die'. Adult patients who are mentally competent have the right to
refuse medical treatment even when that refusal can lead to worsening
ill health and even death. This refusal of treatment may only be ignored
when statutory law provides for treatment without consent, or a judge
makes an order that overrides the patient's consent. While this is
largely accepted when patients are physically and mentally competent, it
becomes a complex issue when a person is mentally competent but due to
physical incapacity are in care because they are unable to care for
Keywords (MeSH): Informed Consent; Mental Competency; Physically Disabled; Treatment Refusal; Right to Die
(Laws, regulations and rules)
Informed consent (Medical law) (Interpretation and construction)
Medical law (Interpretation and construction)
Patients (Care and treatment)
Patients (Laws, regulations and rules)
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Recent cases have drawn attention to the issue of individual autonomy and what is sometimes referred to as 'the right to die'. Adult patients who are mentally competent have the right to refuse medical treatment even when that refusal can lead to worsening ill health and even death. This refusal of treatment may only be ignored when statutory law provides for treatment without consent, or a judge makes an order that overrides the patient's consent. While this is largely accepted when patients are physically and mentally competent, it becomes a complex issue when a person is mentally competent but due to physical incapacity are in care because they are unable to care for themselves. A person may be mentally competent but due to being a quadriplegic or suffering a disease that renders them physically immobile, is unable to exercise self care. These patients are reliant upon others for their daily needs, including nutrition and fluids.
When patients are totally dependent upon others for their daily needs, they may find that their autonomy is restricted due to the fear of their carers that they will be charged with homicide should they accede to the patient's wish not to be treated. Should it be their desire to bring an end to a life they may believe is not worth living suicide is not an option as they are usually incapable of carrying out that wish. To expect others to assist in a desire to suicide would expose those others to being charged with the offence of assisted suicide.
In a case heard in the Supreme Court of Western Australia this year, Brightwater Care Group (Inc) v Rossiter (2009) WASC 229, a court granted declaratory relief in respect of criminality to a health service provider if staff acceded to a mentally competent but physically incapable man's request to discontinue providing him with nutrition and general hydration and allowing him to die. The patient requested analgesics for sedation and pain relief as he approached death. Declaratory relief from criminality means that those caring for the patient would not face criminal charges should he die as a result of them acceding to his wishes to stop treatment that keeps him alive.
The facts and the law contained in this report are drawn and summarised from the judgment of Martin CJ of the Western Australia Supreme Court. Mr Rossiter died from a chest infection five weeks after the court supported his wish to refuse food and water other than that necessary to administer pain relief as he approached death.
The patient, Mr Christian Rossiter, was admitted to a facility that provides residential care for people with disabilities, operated by the Brightwater Care Group (Inc). Mr Rossiter was a quadriplegic, the result of three serious accidents over a period of 20 years, the last one being a fall in 2008. As a result of his injuries, Mr Rossiter had limited residual movement and could only talk through a tracheotomy. His physical state meant he was totally dependent upon others to provide for his daily needs. Because he was unable to take food or fluids orally, he was fed by way of a percutaneous gastronomy tube (PEG). Despite his condition, Mr Rossiter was not terminally ill or dying. However, he had been advised that there was no prospect his condition would improve.
On many occasions Mr Rossiter clearly and unequivocally indicated to his doctor and representatives of the facility that he wished to die. Due to his limited capacity to move, he lacked the physical capacity to cause his own death. However, he repeatedly directed staff of the facility to discontinue feeding and hydrating him through the PEG. He wished the PEG to remain in place as a means of providing pain killing medication that had been dissolved in water. Mr Rossiter was mentally competent and aware that he would die from starvation if the staff acceded to his wishes. The facility were concerned that compliance with Mr Rossiter's directions might result in criminal prosecution.
One of the first points made by Martin CJ at the commencement of his judgment was that the case was not about euthanasia. His Honour went on to say: 'Nor is it about physicians providing lethal treatments to patients who wish to die. Nor is it about the right to life or even the right to death. Nor is the court asked to determine which course of action is in the best interests of a medical patient' (at 2). The judge stated that the 'only issue which arises for determination in this case concerns 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' (at 3).
During the course of the judgement, the Judge made the comment that while he could appreciate the significance of the matters to the patient, it was his 'task to apply the law as dispassionately as' he could at the time (at 10).
The first task of the judge was to make an assessment of Mr Rossiter's mental capacity based on the evidence presented to him. With respect to Mr Rossiter's mental capacity, the judge held that there was no evidence to suggest that Mr Rossiter lacked the mental capacity to give a direction to discontinue treatment. According to Mr Rossiter's doctor, 'he has the capacity to comprehend and retain information given to him in relation to his treatment, and has the capacity to weigh up that information and bring other factors and considerations into account in order to arrive at an informed decision' (at 13).
Also in evidence was a report from a clinical neuropsychologist who had administered tests and made a neuropsychological assessment of Mr Rossiter. Her conclusion was that 'Mr Rossiter was capable of making reasoned decisions concerning his own health and safety, and in particular was capable of making decisions in respect of his future medical treatment after weighing up alternative options, and was capable of expressing reasons for the decisions which he made in that respect.' She also reported that 'Mr Rossiter unequivocally demonstrated that he understood the consequences of withholding the provision of nutrition and hydration through the PEG, and displayed insight into the consequences of that decision' (at 14).
According to His Honour, the case before him lacked many of the complications that may be present in other cases in this area. He went on to say, 'Mr Rossiter is not a child, nor is he terminally ill, or dying. He is not in a vegetative state, nor does he lack the capacity to communicate his wishes'. Nor was this a case in which other persons were making decisions on Mr Rossiter's behalf, as is the case when a person is mentally incapacitated. The judge went on to assert, 'this is a case in which a person with full mental capacity and the ability to communicate his wishes has directed those who have assumed responsibility for his care to discontinue the provision of treatment, which maintains his existence' (at 16). What the judge had to decide was whether, in the circumstances, the facility was legally obliged to comply with Mr Rossiter's direction, or to continue the provision of services which would maintain his life irrespective of his wish not to be treated.
His Honour expressed the legal position regarding declaratory relief from criminality as being granted only in 'exceptional cases', and relates to 'proposed future conduct' as distinct from conduct that has already occurred (at 18). He referred to two significant restraints on what he regarded as 'the exceptional nature of the jurisdiction' he was exercising, namely:
1. I should only answer questions directly and explicitly raised by the facts of this particular case, and refrain from making any observations with respect to any other hypothetical scenarios; and
2. I should only grant declaratory relief if I am satisfied that I have received all the evidence which is relevant to the issues to be determined, and all the facts necessary to determine the issues which arise have been established to an appropriate level of satisfaction' (at 20).
With respect to Mr Rossiter's desire to be given sedation and pain relief as he approached death by starvation, the judge opined that this issue raised more complex questions than the primary question he was asked to decide.
Martin CJ went on to describe the position at common law in relation to the rights of mentally competent adult persons to consent to, or refuse treatment. According to His Honour, 'the answer to the primary question posed in this case at common law is clear and unambiguous' and is based upon 'a number of well-established principles' (at 22). These principles were described by the judge as follows:
* A person of full age is assumed to be capable of having the mental capacity to consent to, or refuse, medical treatment.
* The right of autonomy, or self-determination.
His Honour opined that the presumption of mental capacity to consent to or to refuse medical treatment applied in the case before him. Notwithstanding the application of the presumption there was plenty of direct medical evidence in the case which established, to the judge's satisfaction 'that Mr Rossiter has the mental capacity to make an informed decision in respect of the future provision of treatment, and if provided with the necessary information, could do so with a full appreciation of the consequences of that decision' (at 23).
With respect to the issue of the right to autonomy or self-determination, the judge cited a number of Australian cases, including the seminal High Court case of Rogers v Whitaker (1992) HCA 58, which underpin the established legal principle that medical treatment can only be undertaken lawfully when it is performed with the informed consent of the patient. He stated that the 'corollary of that requirement is than an individual of full capacity is not obliged to give consent to medical treatment, nor is a medical practitioner or other service provider under any obligation to provide such treatment without consent, even if the failure to treat will result in the loss of the patient's life' (at 26). This principle is applied irrespective of the reasons behind the patient's choice and whether others would regard them as rational.
It should be noted that it is 'informed' consent of the patient that is required when the patient is competent of receiving information and to make an informed decision after weighing up the consequences of accepting or refusing treatment. Having determined that Mr Rossiter had the mental capacity to give or withhold consent, the judge went on to consider conflicting evidence in the case as to whether Mr Rossiter had been fully informed of the effect of the physiological deterioration that occurs during the process of starvation. Mr Rossiter's doctor gave evidence that he had described the physiological consequences that ensue during the process of starvation. However, Mr Rossiter asserted that, apart from what he had read, together with advice he had received from a friend, he had received no specific advice on the effects of starving to death. The judge concluded that there was some doubt as to whether Mr Rossiter had been given sufficient information needed for him to be fully informed on the issues.
The judge concluded that, at common law, Mr Rossiter had 'the right to determine whether or not he will continue to receive the services and treatment provided by Brightwater and, at common law, Brightwater would be acting unlawfully by continuing to provide treatment contrary to Mr Rossiter's wishes' (at 32). However, the facility had a duty to ensure that Mr Rossiter was offered full information on the precise consequences of a decision to discontinue the provision of nutrition and hydration prior to him making a decision to do so.
The judge went on to consider whether specific Western Australia statutory provisions would alter the position at common law. The first of the statutory provisions examined by the judge was section 262 of the Criminal Code (WA) which, in brief, criminalises the failure of a person in charge of another to provide the necessaries of life for that person where that person is unable to provide such necessaries of life for himself 'by reason of age, sickness, mental impairment, detention, or any other cause' (at 33).
According to His Honour, section 262 had to be read in conjunction with section 259 of the Criminal Code which specifically refers to surgical and medical treatment. Section 259 (1) provides that 'A person is not criminally responsible to administering, in good faith and with reasonable care and skill, surgical or medical treatment (including palliative care)' where it is given to another person for their benefit or to an unborn child to preserve the mother's life. The administration of the treatment has to be reasonable, 'having regard to the patient's state of mind at the time and to all the circumstances of the case'. Sub-section (2) provides that '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' (at 34).
His Honour opined 'that if section 262 of the Criminal Code is to be construed as imposing a legal duty to provide medical treatment against the wishes of a mentally competent patient, it would represent a drastic alteration of the common law position'. It was his opinion that if Parliament had intended to derogate from the well-established common law principle of self-determination, it would have done so in clear and unequivocal language. He concluded that there was no such clear and unequivocal language in that section; therefore, in the circumstances of this case, 'the section should not be read as extending to the imposition of duties which would be lawful at common law' (at 38).
After classifying the provision of nutrition and hydration to Mr Rossiter through the PEG as surgical and medical treatment within the meaning of the Act, His Honour went on the consider whether section 262 of the Criminal Code mandated that Brightwater continue to provide treatment against Mr Rossiter's wishes, or be guilty of a criminal offence. His Honour construed the section 'to apply in circumstances where a person has charge of another who is by reason of sickness unable to withdraw himself from such charge and who is unable to provide himself with the necessaries of life'. In other words, 'a reference to a person who, by reason of one or more of the various disabilities identified in the section, lacks the capacity to direct or control their own destiny and is therefore dependent upon the person "having charge" of them' (at 39).
His Honour opined that in the present case, Mr Rossiter lacked the physical capacity to control his own destiny but had the mental capacity to make an informed decision regarding his future treatment; therefore, he was not relevantly within 'the charge' of Brightwater. As such, Brightwater was subject to Mr Rossiter's direction consistent with the common law position. His Honour went on to opine that it seemed that Mr Rossiter was financially capable of discharging himself from Brightwater and into the care of another service provider. However, the judge concluded that he lacked the evidence to arrive at any final conclusion on this aspect as to the possible application of section 262. He went on to conclude that the section did not impose a duty on Brightwater to provide the necessaries of life against Mr Rossiter's wishes.
Alternatively, the judge was of the opinion that Brightwater would have a good defence under section 259 of the Criminal Code against any claim that it would be in contravention of the Criminal Code by discontinuing Mr Rossiter's treatment in accordance with his informed decision to that effect. Sub-section 2, referred to supra, negates criminal responsibility where medical treatment, including palliative care, is not administered if it is reasonable not to do so, 'having regard to the patient's state at the time and to all the circumstances of the case' (at 44). The foregoing provision is reinforced by provisions of the Acts Amendment (Consent to Medical Treatment) Act (WA), which supports the right of persons to make 'living wills' directing the course of medical treatment to be followed after they lose mental or physical capacity (at 45).
After analysing Parliamentary Debates at the time of the enactment of section 259 of the Criminal Code, His Honour concluded that section 259(2) provides a complete defence if Brightwater discontinued providing nutrition and hydration in accordance with Mr Rossiter's request. He also concluded that the statutory provisions referred to in the case, 'do not in any way alter the clear position established pursuant to the common law principles', which he had enunciated (at 49). Mr Rossiter has the right to determine and direct his continuing treatment. Should Mr Rossiter repeat his direction to Brightwater that they discontinue to provide him with nutrition and hydration, after he has been given full information regarding the consequences of such a decision, that treatment could not be administered to him without his consent.
With respect to palliative care for Mr Rossiter, His Honour referred to three general principles. The first of these 'is that the legal rights and obligations relating to the provision of palliative care are unaffected by the circumstance that the occasion for the provision of that care comes about as a consequence of Mr Rossiter's withdrawal of consent to the continuing provision of other medical treatment...'(at 52). The second principle relates to the administration of palliative care with the informed consent of the patient. No breach of legal obligations arises if it does not have the effect of causing or hastening the death of the patient (at 53). The third principle relates to the question of euthanasia. According to the judge, 'it is unlawful for any person, including any health professional, to administer medication for the purpose of causing or hastening the death of another person' (at 54).
His Honour went on to make a declaration that Brightwater may not lawfully continue to administer nutrition and hydration to Mr Rossiter if he requests its cessation provided he has been give advice by a qualified medical practitioner as to the consequences of that choice, and he has not revoked his direction. Brightwater would not be criminally liable for the consequences to Mr Rossiter by following his direction. Further, Brightwater would not be criminally responsible for providing palliative care to Mr Rossiter, notwithstanding that the provision of that care arises from Mr Rossiter's informed decision to discontinue the treatment necessary to sustain his life (at 58.2). The case left open the right of the patient to revoke his direction at any time.
In this reported case a mentally capable, but physically disabled man, wished to exercise the right to refuse treatment that kept him alive, save for the provision of pain relief as he approached death. His wishes were not abided by as Brightwater, the facility in which he was being cared for, were concerned that if staff complied with the man's wishes, they could be charged with a criminal offence related to the his death. In order to clarify the rights and obligations of the parties, Brightwater brought the matter before the Supreme Court of Western Australia seeking declaratory relief from criminality should they accede to the man's wishes and his death from starvation that would inevitably ensue.
This case does not legalise euthanasia. Any person, including a health professional, who intentionally does an act to cause the death of a patient or to hasten their death, no matter how terminally ill the patient is, commits a criminal offence. Nor does it create a precedent for the right to die. What it does is to support the right of a mentally competent but incapacitated person to exercise the right to refuse unwanted treatment. The ruling in the case should not be adopted automatically as a precedent for every similar situation. Every such case is dependent upon its facts and circumstances and can only be determined on a case-by-case basis.
This case represents one of the few rulings based on the particular facts of the case. It can be anticipated that more such cases will come before the courts for adjudication. They reinforce the right of competent patients to accept or reject the administration of health care. This does not relieve health professionals from the responsibility of fully informing patients of the consequences of any decisions they make.
It would be prudent to seek a court's determination in each case as there may be questions regarding the competency of the patient making the request. There may also be issues of duress or undue influence involved that would negative the voluntary nature of the disabled person's directives. A further issue concerns the 'informed' nature of the consequences flowing from a decision to refuse treatment. Has the person been given a full and complete explanation of the material facts that result from making a decision to refuse treatment?
The case involved an application of common law principles and Western Australian statutory provisions. While it can be anticipated that the common law position will be consistent or 'common' across all jurisdictions in Australia, the statutory provisions are likely to differ from state to state. Where statutory provisions exist, they take precedence over any inconsistent common law. These factors represent a further compelling reason to seek judicial determination in such cases on a case-by-case basis.
Judith Mair PhD, LLB, RN, RM, DNE.
Faculty of Health Sciences
The University of Sydney
Lidcombe NSW 1825
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