The Queensland Supreme Court was recently asked to exercise its parens patriae jurisdiction to protect the health and welfare of a patient who was unable to do so for himself.1

Parens patriae

Parens patriae Parens patriae (lit. “parent of the nation”) is a jurisdiction of the Supreme Court of each Australian state and territory designed to protect the welfare of vulnerable members of society. In a medical setting, the court effectively acts as a proxy for a patient who is unable to protect their own dignity and right to consent to or refuse medical treatment.

The fundamental question is whether it would be in the patient’s best interests, and therefore lawful, to have the treatment concerned, as opposed to whether it would be in their best interests to withhold or withdraw it.

If the treatment is not in the patient’s best interests, the court is not able to consent to it on their behalf. It follows that, save for situations of emergency, it would be unlawful to give such treatment.

The particular patient’s best interests are considered in the widest sense and include medical, social and psychological factors. The court must put themselves in the shoes of the patient and consider what their attitude to the treatment would be, were they able to speak for themselves.

JT’s case

On 16 November 2012, a 37 year-old man (JT) suffered a severe hypoxic brain injury leaving him in a permanent state of apparent unconsciousness

From that point, JT remained in hospital and was kept alive by feeding through a percutaneous gastronomy tube, regular injections of insulin and removal of waste via a catheter.

By 2014, the hospital had concluded that JT was in a persistent vegetative state from which there was no prospect of recovery. It applied for a declaration of the Queensland Supreme Court that the life sustaining measures were inconsistent with good medical practice and that it would be in JT’s best interests if they ceased. The application was not opposed by JT’s wife.

Decision

In order to determine what was in JT’s best interests from a health perspective, the Court relied on the evidence of JT’s treating physicians. While the majority agreed that JT was in a persistent vegetative state, a consultant neurologist testified that JT was in a minimally conscious state, as JT was able to track a large visual stimulus.

The Court concluded that there was no practical difference between the diagnoses since there was no evidence that JT’s brain was capable of “interpreting” the visual signals it was detecting. Critically, all of JT’s treating physicians agreed that there were no prospects of recovery.

With respect to JT’s welfare, the Court took into account a broad range of considerations, including uncontested evidence of JT’s family as to his expressed preference not to be left in a vegetative state if anything like this ever happened to him, and the ongoing emotional and psychological impact on his wife and children.

The Court noted a distinction between the urgent medical treatment JT received when he suffered a cardiopulmonary arrest on the way to the hospital and his ongoing lifesustaining medical interventions. It inferred that were he able to at the time, JT would have consented to the urgent medical intervention as it was not known at that time how extensive the damage he had suffered was.

The Court concluded that on any view, JT could no longer be taken to be consenting to the invasive care being provided to him. In the absence of such consent, it would be unlawful and inconsistent with good medical practice for the hospital to continue administering life-sustaining care and so the Court granted its application to withdraw treatment.