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Report No. 196

2. Northridge vs. Central Sydney Area Health Service (2000) 2000 NSW (SC) 1241 (O'Keefe J) (29.12.2000)

Mrs. Annette Northridge moved the Court at 2.56 pm on Sunday, 12 th March, 2000, seeking an order preventing the administration of the Royal Prince Alfred Hospital (RPAH) from withdrawing treatment and life support from a patient, her brother, Mr. John Thompson, aged 75 years who she claimed would die if not treated or supported. The patient was admitted on 2.3.2000 in an unconscious state, having suffered a cardiac arrest as a result of an overdose of heroin.

In the judgment dated 29th Dec, 2000, Justice O'Keefe traced the subsequent history of the disagreement between the Thompson family and the RPAH medical staff regarding the termination of antibiotic treatment for the patient on 9 th March 2000 and subsequent health care decisions. It was explained that the medical staff had formed the view that Mr. Thompson was in a 'chronic vegetative state' and that any further treatment would be 'futile'. Due to the Court's intervention, treatment was resumed and at the date of judgment the patient was 'unarguably alive'. The Court referred to the Practice Note (1996 (4) ALL ER 766) of UK.

O'Keefe first referred to 'jurisdiction' of the Court and held that the 'parens patriae' jurisdiction was available to the Court to deal with person and property of those under disability. He referred to the history of this jurisdiction and also relied on the judgment of the House of Lords in Re F (Mental Patient: Sterilisation) 1990(2) AC. 11 in that behalf and applied to unconscious patients. He referred to Mariam's case (1991-2) 175 CLR 218)

The Judge criticized the absence of guidelines by the medical profession in Australia and referred to the exhaustive guidelines of the GMC (UK). He held that the hospital had no explanation as to the criteria it followed to hold that Mr. Thompson was in a 'vegetative state'. Dr. Danes had stated that the patient was not 'brain dead' and that though the patient could not take care of himself, there could be nursing care, as opposed to intensive or other hospital care. The family complained that the doctors were not communicating with them and they stopped antibiotics and would not feed him. They suspected that the Hospital was interested in the organs of the patient for transplantation.

The Judge held that the 'evidence reveals a lack of communication, a premature diagnosis, an inadequate adherence to the hospitals' own policies in relation to consultation with relatives and an absence of recognized criteria for the making of the diagnosis of 'vegetative state'. Significantly, it emerges as common ground that within a matter of days after admission Mr. Thompson was dealt with on the basis that any treatment was futile. This was far too short a time after his injury for these not to be a serious risk of misdiagnosis, as provided to be the case.'

O'Keefe pointed out that it was 'precisely because of such a risk that a standard and guidelines have been adopted in the United Kingdom in relation to vegetative state, continuing vegetative state and permanent vegetative state." "In addition, transferring Mr. Thompson into a renal transplant ward after treatment and 'feeding had been discontinued and a 'Not for Resuscitation order' imposed, could not help but give rise to a perception that there was a conflict of interest in relation to his treatment and management.

I hasten to add that I accept that there was no proposal by the hospital or the doctor to use his organs as transplants after his death. However, in life and death situation, it is important that any conflict of interest or circumstance that may give rise to an apprehension of conflict of interest be avoided, in the same way as bias and the apprehension of bias must be avoided in relation to the judicial determination of the rights of the individuals."

The Judge found that, by 29 th Dec. 2000, the patient admitted in March 2000 was still alive, he moves, responds, is able to walk, articulate and to control a number of muscular and bodily functions. According to the material last put before the Court, he was then in a nursing home under the control of the defendant (hospital).

The Judge deprecated the lack of medical standards in Australia to infer if a patient was a 'PVS', for which in UK, detailed procedures were formulated by the General Medical Council, UK.

In UK, there is scope for seeking a declaration that "the responsible medical practitioners... may lawfully discontinue all life sustaining treatment and medical support measures, (including ventilation, nutrition and hydration by artificial means) designed to keep (the patient) alive (his or her) existing permanent vegetative state."

The Practice Note 1996(4) All ER 766 points out that the standard form of relief recognizes that there may be a material change in the existing circumstances before such withdrawal by providing that any party has liberty to apply for such or other declarations or order as may be appropriate.

The Judge held that there was a requirement to get court sanction in every case where the ANH is proposed to be terminated (this appears to be not correct in view of the Judgment of the Court of Appeal in Burke in 2005).

He held on facts that the withdrawal of treatment and nutrition for Mr. Thompson was premature. A person to be PVS must be in that state for a 'lengthy period' in which there is no change in the state of consciousness. The subsequent treatment and his revival 'highlight the wisdom of allowing a sufficient time to pass between the trauma or other event giving rise to the unconscious state of the patient and the making of a diagnosis of permanent or (chronic) vegetative state, which may be a prelude to withdrawal of treatment, support and nutrition'.

The Judge directed that until further orders, Mr. Thompson be provided appropriate life preserving treatment, and that no 'Not for Resuscitation Order' be made without prior leave of Court.



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