Palliative care, consent & mental harm

Lane v Northern NSW Local Health District (No 3) [2014] NSWCA 233 is a decision today of the New South Wales Court of Appeal. The self represented appellants sought compensation for psychiatric injury arising from the death of their mother whilst in hospital, following consent to palliative treatment provided by their father.

The trial judge accepted that each of the appellants suffered a psychiatric condition that was related, at least in part, to the death of their mother. However, he did not accept that there was negligence on the part of the hospitals’ staff in the treatment of their mother.

The court dismissed the appeal, but in doing so touched on some issues of general interest.

End-of-Life Care and Decision Making Guidelines

At [38], the court said that in most cases where it is alleged that the duty of care involved inappropriate treatment or failure to provide appropriate treatment, specific to the needs of a particular patient, the relevant standard will not be found in such guidelines, but in evidence from relevant health care professionals identifying “competent professional practice” for the purposes of s 5O of the Civil Liability Act 2002 (NSW). In this matter there was medical evidence directed to the appropriate treatment of the deceased, which supported the conclusions reached by the trial judge that there had been no breach of the duty of care.

Disputed consent by the father

The deceased’s husband was both her next of kin and had been appointed by her as her guardian, pursuant to s 6 of the Guardianship Act 1987 (NSW). He was therefore responsible for giving or withholding consent to the treatment administered at the hospitals: [11].

It should be accepted that the hospitals owed a duty to the deceased’s family to take reasonable care in advising Mr Lane as to his wife’s condition, her prognosis and possible treatment and care: [13].

At no stage did the appellants obtain any concession from their father that he did not consent to the treatment given or that in giving consent he did not have the information he required to make the appropriate assessment: see [48].

At [47], the hospital staff appear to have taken extraordinary steps to explain how they believed their patient should be treated and to obtain consent from the family by way consensus. Although both family and staff realised that Mr Lane had the final say in such matters, he too appears to have gone to great lengths to act on the basis of consensus rather than authority. Those inferences are inconsistent with a case based on a breach of any duty of care either to the patient or to her family members.



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