Competent patients and end-of-life decisions

CHAPTER 10 Competent patients and end-of-life decisions



10.1 Death



[10.1.1] What is the definition of death?


The common law approach to defining death has been to rely on the definition given by the medical profession. Cessation of the circulatory system, brain death and brain stem death have all been accepted as satisfying the common law definition.



Case example


Re A [1992] 3 Med LR 303 concerned a child who had no brain stem function. The trial judge found that even though the child’s autonomous functions were being carried on by artificial means, the child had died when his brain stem had ceased to function.


Following the Australian Law Reform Commission’s Report on human tissue transplants (1977), death has been defined legislatively in all jurisdictions except South Australia and Western Australia as:


• irreversible cessation of all function of the person’s brain, or

• irreversible cessation of circulation of blood in the person’s body.

In South Australia and Western Australia, if a person’s respiration and circulation are being maintained by artificial means post-mortem taking of tissues can only occur if that person has total cessation of brain function. This would appear to coincide with the other jurisdictions’ definitions of death.


The relevant legislation in the states and territories is listed in table 10.1.1.


Table 10.1.1 Legislation defining death



























ACT Transplantation & Anatomy Act 1978 s 45
NSW Human Tissue Act 1983 s 33
NT Human Tissue Transplant Act 1979 s 23
Qld Transplantation & Anatomy Act 1979 s 45
SA Transplantation & Anatomy Act 1983 s 24
Tas Human Tissue Act 1985 s 27A
Vic Human Tissue Act 1982 s 41
WA Human Tissue & Transplant Act 1982


[10.1.2] How is death certified?


Death certificates are discussed in [20.4.1]–[20.4.3].



[10.1.3] When should deaths be reported to the coroner?


The office of the coroner was discussed in [3.4.4].


The coroner’s primary role is to investigate unnatural, accidental, violent or suspicious death. Each jurisdiction defines a number of reportable deaths that must be reported to the police or the coroner. Coroners have a discretion as to whether they will hold an inquest into a reported death. All jurisdictions provide for mandatory inquests in particular circumstances, and empower government officials to order the coroner to hold an inquest.


Legislation dealing with reportable deaths is listed in table 10.1.3.


Table 10.1.3 Reportable deaths: legislation and grounds for reporting































































ACT Coroners Act 1997
Under s 77, a death is reportable if there are reasonable grounds to believe that the coroner would have jurisdiction to hold an inquest.
Under s 13:
(1) A coroner must hold an inquest into the manner and cause of death of a person who—
(a) is killed; or

(b) is found drowned; or

(c) dies, or is suspected to have died, a sudden death the cause of which is unknown; or

(d) dies under suspicious circumstances; or

(e) dies during or within 72 hours after, or as a result of—
(i) an operation of a medical, surgical, dental or like nature; or

(ii) an invasive medical or diagnostic procedure; other than an operation or procedure prescribed by regulation to be an operation or procedure to which this paragraph does not apply; or

(f) dies and a doctor has not given a certificate about the cause of death; or

(g) dies not having been attended by a doctor at any time within the period commencing 3 months before the death; or

(h) dies after an accident where the cause of death appears to be directly attributable to the accident; or

(j) dies, or is suspected to have died, in circumstances that, in the opinion of the Attorney-General, should be better ascertained; or

(k) dies in custody.
Inquests are mandatory for deaths in custody and for deaths under, or as a result of, the administration of, an anaesthetic used in a medical, surgical or dental operation (s 14(2)).
NSW Coroners Act 1980
Under s 12A, a death is reportable when a person has reasonable grounds to believe that the death would be examinable by a coroner.
Under s 13:
(1) A coroner has jurisdiction to hold an inquest concerning the death or suspected death of a person if it appears to the coroner that the person has died, or that there is reasonable cause to suspect that the person has died, in any of the following circumstances:
(a) the person died a violent or unnatural death,

(b) the person died a sudden death the cause of which is unknown,

(c) the person died under suspicious or unusual circumstances,

(d) a medical practitioner has not given a certificate as to the cause of death,

(e) the person was not attended by a medical practitioner within the period of 3 months immediately preceding his or her death or suspected death,

(f) the person died while under, or as a result of, or within 24 hours after the administration of, an anaesthetic administered in the course of a medical, surgical or dental operation or procedure or an operation or procedure of a like nature, other than a local anaesthetic administered solely for the purpose of facilitating a procedure for resuscitation from apparent or impending death,

(g) the person died within a year and a day after the date of any accident to which the cause of his or her death or suspected death is or may be attributable,

(h) the person died while in or temporarily absent from a hospital within the meaning of the Mental Health Act 1990 and while the person was a resident at the hospital for the purpose of receiving care, treatment or assistance.
Under s 13A, the coroner may hold an inquest into the death of a person who has died in custody.
Under s 13AB, the coroner may hold an inquest into the death of:
(a) a child in care, or

(b) a child in respect of whom a report was made under Part 2 of Chapter 3 of the Children and Young Persons (Care and Protection) Act 1998 within the period of 3 years immediately preceding the child’s death, or

(c) a child who is a sibling of a child in respect of whom a report was made under Part 2 of Chapter 3 of the Children and Young Persons (Care and Protection) Act 1998 within the period of 3 years immediately preceding the child’s death, or

(d) a child whose death is or may be due to abuse or neglect or that occurs in suspicious circumstances, or

(e) a person (whether or not a child) who, at the time of the person’s death, was living in, or was temporarily absent from, residential care provided by a service provider and authorised or funded under the Disability Services Act 1993 or a residential centre for handicapped persons, or

(f) a person (other than a child in care) who is in a target group within the meaning of the Disability Services Act 1993 who receives from a service provider assistance (of a kind prescribed by the regulations) to enable the person to live independently in the community.
NT Coroners Act 1993
Under s 12(1), a death is reportable when it is a death:
(a) …
(iv) that appears to have been unexpected, unnatural or violent or to have resulted, directly or indirectly, from an accident or injury;

(v) that occurred during an anaesthetic;

(vi) that occurred as a result of an anaesthetic and is not due to natural causes;

(vii) of a person who, immediately before death, was a person held in care or custody;

(viii) that was caused or contributed to by injuries sustained while the person was held in custody; or

(ix) of a person whose identity is unknown.
Under s 12(3):
A medical practitioner who is present at or after the death of a person shall report the death as soon as possible to a coroner if—
(a) the death is a reportable death;

(b) the medical practitioner does not view the body of the deceased person; or

(c) the medical practitioner is unable to determine the cause of death.
Qld Coroners Act 2003
Under s 8(3), a person’s death is reportable where:
(a) it is not known who the person is; or

(b) the death was a violent or otherwise unnatural death; or

(c) the death happened in suspicious circumstances; or

(d) the death was not reasonably expected to be the outcome of a health procedure; or

(e) a cause of death certificate has not been issued, and is not likely to be issued, for the person; or

(f) the death was a death in care; or

(g) the death was a death in custody.
SA Coroners Act 2003
Under s 3, a ‘reportable death’ is a death:
(a) by unexpected, unnatural, unusual, violent or unknown cause; or

(b) on an aircraft during a flight, or on a vessel during a voyage; or

(c) in custody; or

(d) that occurs during or as a result, or within 24 hours, of—
(i) the carrying out of a surgical procedure or an invasive medical or diagnostic procedure; or

(ii) the administration of an anaesthetic for the purposes of carrying out such a procedure, not being a procedure specified by the regulations to be a procedure to which this paragraph does not apply;

(e) that occurs at a place other than a hospital but within 24 hours of—
(i) the person having been discharged from a hospital after being an inpatient of the hospital; or

(ii) the person having sought emergency treatment at a hospital; or

(f) where the person was, at the time of death—
(i) a protected person under the Aged and Infirm Persons’ Property Act 1940 or the Guardianship and Administration Act 1993; or

(ii) in the custody or under the guardianship of the Minister under the Children’s Protection Act 1993; or

(iii) a patient in an approved treatment centre under the Mental Health Act 1993; or

(iv) a resident of a licensed supported residential facility under the Supported Residential Facilities Act 1992; or

(v) accommodated in a hospital or other treatment facility for the purposes of being treated for drug addiction; or

(g) that occurs in the course or as a result, or within 24 hours, of the person receiving medical treatment to which consent has been given under Part 5 of the Guardianship and Administration Act 1993; or

(h) where no certificate as to the cause of death has been given to the Registrar of Births, Deaths and Marriages; or

(i) that occurs in circumstances prescribed by the regulations.
Tas Coroners Act 1995
Under s 3, a ‘reportable death’ includes a death:
(a) …
(iv) that appears to have been unexpected, unnatural or violent or to have resulted directly or indirectly from an accident or injury; or

(v) that occurs during anaesthesia or sedation; or

(vi) that occurs as a result of anaesthesia or sedation and is not due to natural causes; or

(vii) the cause of which is unknown; or

(viii) of a child under the age of one year which was sudden and unexpected; or

(ix) of a person who immediately before death was a person held in care or a person held in custody; or

(x) of a person whose identity is unknown; or

(xi) that occurs at, or as a result of an accident or injury that occurs at, the deceased person’s place of work, and does not appear to be due to natural causes
…
as well as a death that occurred in custody ((c), (d)).
Vic Coroners Act 1985
Under s 3, a ‘reportable death’ includes a death:
…

(e) that appears to have been unexpected, unnatural or violent or to have resulted, directly or indirectly, from accident or injury; or

(f) that occurs during an anaesthetic; or

(g) that occurs as a result of an anaesthetic and is not due to natural causes; or

(h) that occurs in prescribed circumstances; or

(i) of a person who immediately before death was a person held in care; or

(iaa) of a person who immediately before death was a patient within the meaning of the Mental Health Act 1986 but was not a person held in care; or

(ib) of a person under the control or care of the Secretary to the Department of Justice or a member of the police force; or

(ib) of a person in respect of whom a court has made a non-custodial supervision order under section 26 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997; or

(j) of a person whose identity is unknown
or for which a death certificate has not been issued ((k), (l)).
There is also a class of reviewable death that must be reported to the coroner. A reviewable death is the second or subsequent death of a child to a parent (s 3).
WA Coroners Act 1996
Under s 3, a ‘reportable death’ includes a death:
(a) that appears to have been unexpected, unnatural or violent or to have resulted, directly or indirectly, from injury;

(b) that occurs during an anaesthetic;

(c) that occurs as a result of an anaesthetic and is not due to natural causes;

(d) that occurs in prescribed circumstances;

(e) of a person who immediately before death was a person held in care;

(f) that appears to have been caused or contributed to while the person was held in care;

(g) that appears to have been caused or contributed to by any action of a member of the Police Force;

(h) of a person whose identity is unknown …
or for which a death certificate has not been issued ((i), (j)).


10.2 Competent patients and refusal of life-sustaining treatment



[10.2.1] Do competent patients have a right to refuse treatment when that will lead to their deaths?


The test for competence is discussed in [7.1.1]–[7.1.8].


Adults are presumed to be competent, and an adult’s decision concerning treatment is binding even if others do not regard it as reasonable or sensible. Apart from the situations described in [10.2.2]–[10.2.3], decisions to refuse treatment must be respected even when the person may die as a result of its being withheld or withdrawn.



Case example


B v NHS Trust [2002] EWHC 429 (Fam) concerned a quadriplegic and ventilator-dependent patient who, after several months without improvement, requested that the ventilation be withdrawn, having created an advance directive to that effect. Part of the treatment team argued that she was depressed and hence incompetent, with the result that her wishes could be ignored and treatment continued.


The judge rejected this argument, found her to be competent and free to request the withdrawal of treatment, and upheld her decision. Nominal damages were ordered for the unauthorised treatment, and the patient died following the treatment withdrawal.



[10.2.2] Are there patients who cannot refuse treatment?


Logically, incompetent patients cannot refuse treatment. The decisions of incompetent patients to refuse treatment are not binding on substitute decision-makers, although they may be of relevance to the substitute decision-making process.


Patients regulated by mental health legislation may also be subject to orders requiring them to accept treatment: see [13.3.1].


Prisoners and detainees may also be forcibly tested and treated in some jurisdictions. For example, s 77 of the Crimes (Administration of Sentences) Act 1999 (NSW) allows prison authorities to order compulsory treatment when it is necessary to save a prisoner’s life or prevent serious damage to their health.


Children also have limited rights to refuse treatment: see [9.4.1].



[10.2.3] Are there limits to the right to refuse treatment?


Common law recognises a number of public interests that may override a competent patient’s decision to refuse treatment. For example, the public interest against suicide is said to override a competent person’s decision to refuse life-sustaining treatment made necessary by self-harm.


Suicide and attempted suicide are not crimes, but some jurisdictions nevertheless provide protection to people who use force to prevent a person committing suicide. The relevant laws are listed in table 10.2.3.


Table 10.2.3 Legislation relating to the prevention of suicide















ACT Crimes Act 1900 s 18
NSW Crimes Act 1900 s 574B
SA Criminal Law Consolidation Act 1935 s 13
Vic Crimes Act 1958 s 463B


Case example


Re Kinney (unreported, VSC, Fullagar J, 23 December 1988) concerned a man who had unsuccessfully attempted suicide after allegedly murdering his mother-in-law. His wife sought a court order to prevent medical treatment being administered so that he could die in accordance with his suicide note. Fullagar J refused to prevent the treatment on the grounds that it would be tantamount to aiding and abetting a suicide attempt.

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Related posts:

  1. Consent
  2. Competence
  3. Incompetent patients and end-of-life decisions
  4. Mental health

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Mar 25, 2017 | Posted by in GENERAL SURGERY | Comments Off on Competent patients and end-of-life decisions

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