Assessment Task You are a trainee solicitor working in
Assessment Task: You are a trainee...
Assessment Task:Submitted: 11 years ago.Category: Australia Law
You are a trainee solicitor working in a law firm in Ingham. Your supervising partner has just received instructions from Kylie Brown. Ms Brown’s statement contains the following information.
In January of this year, Ms Brown was riding her bicycle to MyStore at Brennan Shoppingtown where she works as a sales manager. Ms Brown is 28 years of age and lives in Gaudron, an outer suburb of Ingham in North Queensland, and she regularly cycles along Kirby Road on route to Brennan Shoppingtown.
On the 6th of January of the year, Ms Brown was cycling past an old block of flats on Kirby Road which she happened to notice were freshly painted. Although it was only 6.45am, it was already a particularly warm morning, and Ms Brown can remember thinking that it would be nice to be sitting under the patio area of the block of flats as it looked so cool and fresh. In fact, that is the last thing Ms Brown can remember before the accident. Seconds later, a woman who was exiting a car that was parked next to the bike lane, flung open the car door in the path of Ms Brown. Ms Brown was thrown from her bike and sustained serious injuries from a motorbike that partially ran her over when she landed in the traffic. Ms Brown remembers trying to communicate in the ambulance that it was against her religious beliefs to take another person’s blood. She had an oxygen mask on and although only remembers a little from her ambulance journey she thinks that she did try to speak, but the ambulance attendant told her to breathe deeply and relax.
Her next memory is being in the Emergency Department of the Ingham Hospital with a noise of machines around her. Ms Brown said at that time the oxygen mask had been removed and she is sure she uttered the words “Jehovah Witness” and “no transfusion” before the nurse told her not to worry and that they would take good care of her. Shortly after, Ms Brown was rushed to an operating theatre where a surgical team operated on her for three hours to save her life. During this operation she was given four litres of donated blood. Ms Brown is completely devastated and feels her opportunity for eternal life has been taken away from her. Her view is that she has a right to refuse treatment and she clearly indicated her refusal to accept blood. She has been devoted to the Jehovah Witness faith all of her life and firmly believes and accepts that if she was going to die without the blood transfusion then it was her time to leave this life. She is seeking to hold the Ingham Hospital accountable for not respecting to her legal right to refuse medical treatment.
Your supervising partner has advised you that if proceedings are to be commenced they will need to be instituted in the Supreme Court of Queensland. Your supervising partner has referred you to four cases which he believes are relevant. Assume that the following four cases given to you are the only law that exists on this legal issue.
(Please note: This does not mean that students are not to use case authorities to back up your reasoning in your answer, it simply signifies that students do not need to investigate actual cases discussing consent/refusal of medical treatment issues.)
Case 1: Donald v Western Australian Health Board - District Court of Western Australia, 1995
Case 2: Chambers v Queensland Health Authority - Court of Appeal, Supreme Court of Queensland, 1999.
Case 3: Alistair v NSW Health Department - Full Court of the High Court, 2001.
Case 4: Spencer v Queensland Health Authority - Supreme Court of Queensland, 2007.
Details of the cases are set out below.
You are required to write an advice on the likelihood of the success of the proceedings if they are commenced in the Supreme Court of Queensland. Your advice should not exceed 2000 words. (footnotes are not included in the word count) The word count of 2000 words includes your advice and any headings, tables, appendices, attachments or any other words that form part of your answer.
This includes the setting out of your answer, short case notes on each of the precedent cases, which you may, set out in a table. Use case authorities to support your answer. You are free to use headings, subheadings, numbered paragraphs and tables to set out your advice.
Donald v Western Australian Health Board
District Court of Western Australia, 1995.
Ms Donald is a devout Jehovah Witness and accordingly is of the belief that the transfer of blood from one individual to another is wrong. Her religious belief is respected by this court, but the task of this court is to decide a question of law.
Although it may appear on the facts of this case that Ms Donald was anticipating what medical procedures may lie ahead and was rejecting any treatment that involved the transfer of blood, that reasoning is not legally sound. The extent of Ms Donald’s injuries posed as a serious threat to her life and she was not fully conscious most of the time. When Ms Donald tried to protest against any treatment that may involve blood, it was at a time when she could be described as barely conscious and very weak. Her disjointed phrases attempting to refuse blood products did not come as a result of discussions with hospital staff of her medical state and consideration of the range of options available to her.
In a case such as this, it is the duty of the court to examine the information given to the patient, taking into account the patient’s concerns, and then decide whether they fully comprehended the issues to make a refusal of consent that is recognisable by law. Even if it had been a situation where the statements were more specific, the appellant did not have the requisite capacity at that time to decide. There are two reasons for this. Firstly, she was not able to make an informed decision either way because she was not alerted to the full extent of her injuries and the range of medical options available to her. Secondly, the evidence shows she was not fit to make a genuine choice because she was lapsing in and out of consciousness. Consequently, Ms Donald’s communications to the medical staff on the day in question could not amount to refusal of treatment in a legal sense.
I find for the defendant and the plaintiff is ordered to pay the defendants costs.
Chambers v Queensland Health Authority
Court of Appeal, Supreme Court of Queensland, 1999.
Kent and Matthews JJ:
This case concerns the decision of an adult woman (the appellant, Ms Chambers) to refuse blood products after she gave birth to a premature baby in traumatic circumstances. After the birth, the medical staff explained at length to Ms Chambers the state of her health and their clinical opinion of the necessity of her receiving a blood transfusion. The appellant’s father (Mr Smith) who was present in the room, became overbearing and aggressive. Medical staff asked Mr Smith to calm down and tried to impress upon him the immediate need for their patient, the appellant, to give them her decision. Mr Smith then indicated in a hostile manner that under no circumstances was his daughter to receive any blood. The evidence shows that at this point Ms Chambers was sobbing and leaning away from her father. Nursing staff then called hospital security to have Mr Smith removed from the hospital room. Mr Smith then became more insistent and yelled that his entire family thought “it was ethically wrong to have another person’s blood pumping through your veins, and they would never do it.” He then turned to Ms Chambers and yelled at her “isn’t this so Sonia?” The appellant continued to sob but after a couple of moments, nodded her head slowly. Just as the hospital security arrived in the room, the Ms Chambers lost consciousness and her life was then in serious danger. Emergency treatment was administered to Ms Chambers as her father was lead away by security. A blood transfusion was included as part of the medical treatment received by Ms Chambers that day and she is now appealing against the trial judge’s decision.
A person has the right to control and self determination in respect to his or her body which the medical profession must respect. The law requires a patient to have been given all the relevant information to then have the capacity to make a fully considered decision. Although the circumstances were clearly distressing, the medical staff had discussed at length Ms Chamber’s status and the options available to her. Ms Chambers had clearly indicated that she had decided to refuse the blood transfusion and the hospital did not abide by her legal right to refuse treatment.
Appeal allowed (to be continued on next page)
Case 2 Contined
Harrison CJ and Jones J:
The facts have been stated above by our learned colleagues and we do not feel compelled to add anything further.
It is clear the father of the appellant exerted undue pressure on the appellant to make her refuse treatment prior to her losing consciousness. The refusal of treatment is only as satisfactory as the ability of the patient to weigh the risks and make a decision free from coercion or pressure. The evidence demonstrates that the medical staff were able to discuss with the appellant the state of her health and the options of treatment available to her. However, the appellant’s refusal came under circumstances of undue influence from her father so she was deprived of the opportunity to consider this information and fully comprehend the significance of any decision then made. The question of competency depends on the circumstances. Although the patient was fully orientated about her health and the consequences of treatment or refusal of treatment, she was not competent to make a choice in those circumstances. If a medical practitioner assesses a patient as not competent to refuse treatment, they must ignore refusals. The medical staff were correct in continuing with Ms Chamber’s life saving treatment as Ms Chambers did not possess the requisite capacity to make the decision to consent or refuse treatment on her own behalf.
Alistair v NSW Health Department
Full Court of the High Court, 2001.
Arthur CJ and Bailey, CartXXXXX, XXXXX, Everton JJ:
The appellant is appealing from a decision of the New South Wales Court of Appeal. In late 1995 the appellant, Ms Alistair, was injured in a car accident. She was admitted to hospital and the possibility of her requiring a blood transfusion arose. Ms Alistair was unconscious upon her arrival to hospital, but it seems there were brief moments of consciousness. During these apparent moments of consciousness, Ms Alistair mostly moaned or made incoherent noises, no doubt in pain due to her serious injuries. It was also presented in evidence that Ms Alistair spoke or whispered a few words and phrases while in these brief periods of apparent lucidity. The appellant communicated the phrases “I’m a Jehovah witness” and “no blood” but the medical staff were unable to discuss with her the life-threatening nature of her injuries due to the immediacy of the situation and the lack of consciousness displayed by Ms Alistair.
The appellant argues that there was a valid refusal of consent to medical treatment and the procedures preformed on the appellant, including the blood transfusion, amounted to assault.
Prima facie (self-evident from the facts) every adult has the right to decide whether he or she would accept medical treatment, even if a refusal might cause permanent injury, or even lead to premature death. This is regardless of whether the reason for the refusal was rational or irrational. However, if an adult patient does not have the requisite capacity at the time of the purported refusal, it is the duty of the doctors to exercise their clinical judgment and treat the patient in their best interests. On the facts, the doctors were justified in disregarding the appellant’s statements. There was not sufficient discussion with medical staff to inform her of her health status and the treatment options available to her. Consequently, she was not able to evaluate relevant information to provide an informed consent, or refusal of medical treatment. Although some words were uttered in relation to a possible rejection of blood products, the circumstances cannot be construed as one where there was a clear statement of refusing treatment after careful consideration of the health implications. As such, there was no valid refusal of treatment.
Appeal is dismissed.
Francis and Gibbon JJ:
The facts of this case have already been stated, so there is no reason to repeat them. If a potentially life-threatening situation can be anticipated, and doctors are confronted with a real doubt as to the validity of the patient’s refusal of treatment, they must seek a declaration from the courts of the lawfulness of the proposed treatment. The doctors involved should have sort a court declaration. It is our position that they would have received a court declaration stating the refusal of treatment was made during moments of clarity and was legally valid. The medical profession has a duty to preserve life and act in the best interests of the patient; however this duty is superior to the patient’s right to autonomy. The appellant made a clear and valid refusal of treatment, which the relevant health care providers were legally bound to acknowledge.
Appeal is allowed.
Spencer v Queensland Health Authority
Supreme Court of Queensland, 2007.
The facts of the case are straight forward and are as follows. Mr Spencer was involved in a serious accident at his place of work. He was standing between the footpath and the street outside of his place of employment unlocking his bicycle from the bicycle stand, when a forklift side-swiped him and he was severely injured. The forklift driver stopped immediately and used his mobile phone to call emergency services. An ambulance arrived in a matter of a few moments and Mr Spencer was swiftly taken to the public hospital nearby. Mr Spencer was already losing a considerable amount of blood and remembers “continuously blacking out, and then coming to but feeling very faint.” It is Mr Spencer’s claim that in between the moments where he lost consciousness, he was in fact able to think rationally even though he was feeling weak. During one of those moments he whispered to the nurse “no transfusion” and “against my faith.” The nurse leant down to Mr Spencer and gently patted him on the shoulder and said “don’t worry old man, your family will arrive here soon and everything will be alright.”
The nursing staff gave evidence that it was very clear to them that Mr Spencer was not compos mentis; in fact he was delirious and no able to speak in a coherent manner. It was for this reason, coupled with the urgent circumstances, that staff were not able to explain the nature of his injuries and treatment available.
A case such as this illustrates the difficulty of where the line of patient autonomy and the medical principle of beneficence (best medical result for the patient) should be drawn. I am unaware of any cases that have discussed this particular circumstance, so I shall develop the law as I see fit.
The actions of the medical staff have failed to consider the important right of self-determination that every person has with respect to the treatment, if any, they wish to have. It is not for the medical staff to question a clear declaration of refusal to consent to medical treatment, even if those reasons do not seem rational. Medical treatment is an invasion upon our person which is why the law ensures it must be consented to. In this case the plaintiff did not consent to the treatment given. Every adult individual of sound mind has the right to determine what shall be done with their own body and a surgeon who performs an operation without the patient’s consent commits an assault for which the patient is entitled to receive damages.
I therefore find for the plaintiff.
Note: The above cases include adaptations of real casing involving issues of consent to medical treatment (the adaptations may not represent the law accurately) including Re T (An Adult) (Consent to medical Treatment)  2 Fam 458 and Schloendorff v Society of New York Hospital  211 NY 125. Students are NOT required to read these cases for the purposes of this assessment item.
End of Assessment