Each adult in Australia is presumed to have capacity to exercise their right of self-determination and give or withhold consent to medical treatment unless this presumption is rebutted. Once consent to certain treatment is given, the administration of that treatment will be lawful.

While it will be clear in the overwhelming majority of cases whether a patient has capacity to consent to medical treatment or not, the assessment of capacity can sometimes be a difficult issue confronting medical practitioners. Even more difficult can be the ramifications of a patient’s decision to consent or withhold consent to certain treatment where in the opinion of the medical practitioner they lack the capacity to make this decision.

So what factors should be taken into account in assessing a patient’s capacity? The facts and findings of a recent NSW Supreme Court case provide useful guidance regarding this (see Application of a Local Health District; Re a Patient Fay [2016] NSWSC 624).

Fay’s circumstances

The case concerned Fay, a 19 year old female patient with an intellectual disability. Fay lived with her mother, stepfather and son in country NSW. Due to her disability Fay’s mother continued to play a very significant role in her adult life and Fay was largely dependent on her. Fay had been admitted to hospital with progressive renal impairment resulting from her second pregnancy which had reached approximately 22 weeks. Despite ongoing treatment, Fay’s condition was deteriorating. Fay’s treating doctors were of the view that she faced a significant risk of permanent cerebral damage and possibly death if her pregnancy continued and had recommended the pregnancy be terminated.

Fay did not accept this advice but had signed a consent two days before the Court hearing which provided the following:

“If I have a severe complication like an eclamptic seizure (fit), a cerebral haemorrhage (bleeding in the brain), a stroke, bleeding of the liver or my doctor considers that I am likely to die, then I consent to delivering of the baby even if that means the baby will not survive.”

Fay’s mother supported her decision and was herself strongly opposed to any intervention except in the most serious of circumstances.

Fay’s treating doctors wished to intervene immediately rather than wait for any of the events specified in Fay’s consent to occur. Various orders were sought from the Supreme Court including an order allowing this intervention to take place. The plaintiff (the Local Health District) had earlier applied to NSW Civil and Administrative Tribunal (NCAT) for permission to intervene but this application had been rejected.

Did Fay have the capacity to reject her treating doctors’ recommendation?

Following an urgent hearing conducted at Fay’s bedside, Justice Sackar of the Supreme Court found that Fay lacked the requisite capacity to understand and evaluate her condition and consequently accepted the recommendations of her treating doctors. In making this decision, Justice Sackar confirmed “if a person is unable to comprehend and/or retain information which is material to the relevant decision, in particular the consequences of the decision, or the person is unable to use and weigh the information as part of the process of making the decision, then generally the person will be seen as incapable of exercising their right of self-determination.”[1]

Here Justice Sackar found Fay’s general lack of response when questioned, her unwillingness or inability to speak during the hearing and her limited responses to questions asked by her solicitor meant that she did not understand her circumstances and had no meaningful ability to make a rational evaluation of the likelihood of the risks involved with continuing her pregnancy. This was consistent with the view of the staff specialist psychiatrist who had met with Fay twice and who believed Fay was unable to understand her medical condition and weigh up the various choices for treatment. Justice Sackar also viewed the consent to treatment which had been signed by Fay and which permitted treatment only in highly critical situations as further supporting the conclusion that Fay lacked ‘a real ability to make a rational evaluation of the likelihood of risks.’[2]

The conduct of Fay’s mother, both before and during the hearing, was also an important contributing factor to Justice Sackar’s findings. Fay’s mother consistently purported to speak on behalf of Fay in her interactions with Fay’s treating doctors as well as the Court, and appeared to exercise significant influence over her views to the point where Justice Sackar doubted whether those views were really Fay’s.

An important aspect of Justice Sackar’s findings was relating to the earlier decision which had been made by NCAT regarding Fay’s capacity to make her decision to refuse medical treatment.

In arriving at its decision, NCAT reviewed supporting documentation from Fay’s treating doctors and conducted a telephone conference with various people at the hospital including Fay, her mother and two of her treating doctors. During this teleconference a member of NCAT had a very limited conversation with Fay. The orders NCAT subsequently made presumed that Fay had the requisite capacity to refuse treatment but no reasons were given for NCAT’s decision.

Justice Sackar found that Fay’s disability meant NCAT should have found that she was incapable of making the relevant decision under section 33(2)(a) of the Guardianship Act 1987 (NSW). In a highly critical assessment of NCAT’s approach in the case, Justice Sackar stated:

“It is fair to say in my view their attempt by telephone to understand, in a complex case, the position of Fay was wholly unsatisfactory… this was a matter where the life of Fay or the quality of it was the subject of uncontroverted medical evidence. The principal question was whether Fay had capacity. The Tribunal’s exchange via telephone did not in any adequate way explore that topic at all. It was obviously accepted Fay could not continue with the telephone conference and it seems on an extraordinarily limited and ambiguous exchange NCAT concluded she had capacity to refuse treatment. This was against the staff specialist psychiatrist’s report to the contrary. Without reasons there is no discernible basis upon which Fay’s evidence given its content could have been determinative of the issue. Given the potential gravity of the consequences, NCAT’s investigation was I consider somewhat regrettably superficial.”[3]