The recent cases of The Hospital v T & Anor[2015] QSC 185 and Ping Yuan v Da Yong Chen [2015] NSWSC 932 demonstrate the difficulties encountered by hospitals unable to obtain adequate consent from a patient and how recourse to the courts can be used to ‘future proof’ a treatment plan and avoid medical practitioners having to make decisions in the agony of the moment.  

In The Hospital v T & Anor the hospital was treating a seven year old boy, known as ‘J’, with serious liver disease. Ultimately he will require a liver transplant – otherwise his death is inevitable. Blood transfusions prove necessary in approximately 95% of these transplant procedures.

The difficulty faced by the hospital was that J and his parents are Jehovah’s Witnesses. While they consented to the liver transplant they objected to any blood transfusion, this being against their religious beliefs.

At the time of the hearing, the only lawful way in which the hospital could administer a blood transfusion against J’s parents’ wishes was pursuant to section 20 of the Transplantation and Anatomy Act 1979 (Qld) if the procedure was necessary to preserve J’s life. However, this situation would not arise until the transplant was underway and it became evident that a blood transfusion was necessary. That would not be the time to seek guidance from the court.

Douglas J recognised this, accepting that there was a good reason for early determination of the issue. He acknowledged that it was preferable for the hospital’s transplant team to have confidence that they had explicit consent to perform a blood transfusion should that prove necessary during the transplant procedure.

Douglas J ultimately held that the sanctity of J’s life outweighed the respect that must be given to the religious beliefs held by J and his parents. He authorised the hospital and its medical practitioners to administer blood to J which, in their medical judgment, was desirable or necessary according to good medical practice.

Encouraging medical teams to communicate with patients and their families openly and clearly during the earlier stages of a terminal illness may identify issues regarding consent or capacity that could arise in the future. If an issue is identified, the hospital can then consider whether to seek guidance from the courts at that time to prevent the team being faced with a seemingly impossible decision when the patient is in a life threatening condition.

Whilst such planning is desirable, it will not be practical in every situation, as identified by the facts in Ping Yuan v Da Yong Chen. At 9.00pm on 7 July 2015, Ms Ping Yuan was forced to make an urgent ex parte application for a court order to facilitate the collection of sperm from her husband, Mr Da Yong Chen, who was unconscious and in a critical condition at the Royal Prince Alfred Hospital in Sydney.

Mr Chen had been admitted to the hospital the previous day with severe chest pain. He was diagnosed with a rupture of a major blood vessel and he required emergency surgery.

Mr Chen remained conscious until the general anesthetic for the surgery was administered. Ms Yuan alleged that just before Mr Chen lost consciousness, he told her that he wanted to have another child with her. Mr Chen did not regain consciousness following the surgery and it was considered that he may only have hours to live.

Ms Yuan requested a specialist within the fertility clinic at the hospital, Dr Ying Li, extract sperm from her unconscious husband and to store it for insemination at a later date.

Dr Li was willing to perform the procedure subject to being satisfied that he had lawful and effective consent to do so. However, Mr Chen was not expected to regain consciousness prior to his death and what he had allegedly said to his wife before his surgery did not amount to consent for the procedure. An urgent application to the court was therefore Ms Yuan’s only option.

Fagan J ultimately held that the proposed procedure fell within the meaning of “treatment” under section 40 of the Guardianship Act 1987 (NSW). As such, he authorised the medical practitioners to act upon the consent given by Ms Yuan as the person responsible for Mr Chen. The extraction procedure was undertaken shortly after the declaration was communicated to the hospital. The urgency of the situation was proven by Mr Chen’s death 45 minutes after the procedure was performed.