Cessation of mechanical ventilation: Declaration as to lawfulness; not assisting suicide

Re JS [2014] NSWSC 302 saw a request by JS (who suffered quadriplegia since age 7) that his life sustaining mechanical ventilation be ceased on his 28th birthday.

Hunter New England Local Health District, the operator of the John Hunter Hospital in Newcastle, sought a declaration consistent with the wishes of JS to the effect that the medical services be limited to services ancillary to the discontinuance of all life sustaining treatment and palliative measures aimed at providing JS with comfort, pain relief and relief of anxiety or torment.

There was no concern as to the capacity of JS, with the court noting that JS is not suffering from any impairment or disturbance which makes him incapable of making the decision.

The court concluded at [33] – [34]:

33 In these circumstances, it seems to me that provided JS’ request is not revoked by him or modified by him, the medical practitioners and staff at the hospital with responsibility for his care would be acting lawfully if they act in accordance with JS’ request that he be disconnected from the mechanical ventilation, which currently sustains his life. I propose to make a declaration to that effect.

34 Before doing so, I should note that I was referred to various provisions of the Crimes Act 1900 (NSW) which, it was said, could have some relevance. In the light of my conclusions about JS’ capacity and the validity of his decision, I cannot see that any of these provisions could have any application. In particular, reference was made to s 31C of the Crimes Act which concerns aiding and abetting the suicide or attempted suicide of another person. As stated by Basten JA in X v The Sydney Children’s Hospitals Network[2013] NSWCA 320 at 59:

“The legal concept of suicide, being the intentional taking of one’s own life, is not engaged in a case where medical assistance is refused, even in the knowledge of certain death.”