Note: the matter below was the subject of leave to appeal: Chaloner & Anor v The Australian Capital Territory [2014] ACTSC 329.

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DLA Piper’s regular Health Alert today includes reference to an unusual matter in the ACT Supreme Court, Chaloner & Anor v Australian Capital Territory [2013] ACTSC 269.

The litigation involved an allegation that a now deceased person (Lima Thatcher) had been subjected to medical treatment without her consent and therefore in breach of section 10(2) of the Human Rights Act 2004 (ACT). That section is brief, providing that no one may be subjected to medical or scientific experimentation or treatment without his or her free consent.

Ms Thatcher suffered dementia and had fallen, fracturing her femur. There was an error on the consent form as to which leg was fractured. The surgeon operated on the wrong leg, performing a hip replacement. The patient died some 9 days later, apparently as a result of ischaemic heart disease. Ther coroner decided not to hold an inquest as he was satisfied as to the cause of death.

The applicants, grand daughters of the deceased, sought a declaration under section 40C that the treatment was a breach of rights of the deceased.

Whilst there appeared no doubt that the deceased was subjected to medical treatment, being the surgical replacement of the left hip without her free consent, as to the breach of section 10 the respondent to the application was not amenable to an order as stated at [28].

The surgeon, Dr Burns, frankly conceded during the conference with the family that he had “made a massive error and was ultimately responsible”. An orthopaedic registrar who would have been an employee of the hospital had made a mistake filling a form out, but he did not subject the deceased to medical treatment. The deceased was treated medically by Dr Burns. It is not alleged that the Territory is vicariously liable for a breach of s 10 of the Human Rights Act by Dr Burns, or that Dr Burns is caught by the Act.

The applicant grand daughters in any event were not entitled to relief under section 40C of the Act, as stated at [29]:

Additionally, whilst it is asserted in the grounds that the continuing plaintiffs (the granddaughters) are victims of the contravention of s 40B of the Human Rights Act, it seems to me that this assertion is misconceived. The victim of a contravention of s 40B, it seems to me, can only be the person whose human right is infringed. The deceased, if she were alive, would be a victim. There is an argument that following her death, her executrix has a right to bring an action on behalf of her estate, based upon her status as a victim at the time of her death. But it does not seem to me that the granddaughters can be victims for the purposes of s 40C. They cannot succeed in that part of the proceeding which seeks relief pursuant to s 40C of the Human Rights Act.