Duress or undue influence: Pregnancy termination

Application of a Local Health District; Re a Patient Fay [2016] NSWSC 624 concerned a  pregnant 19 year old Aboriginal patient with intellectual disability.

The treating doctors were of the view that Fay was at a significant risk of permanent cerebral damage and possibly death if the pregnancy continued and had recommended it be terminated to allow more effective control of her blood pressure, against a background of significant renal impairment requiring haemodialysis. The patient and her mother did not consent to the proposed termination immediately, but would do so should Fay had “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“.

Her treating doctors notwithstanding the signed consent wished to intervene immediately rather than wait for the manifestation of any one of a number of nominated events.

At [8] the court noted:

Having conducted an urgent hearing on Saturday 14 May, I formed the view that Fay lacked the requisite capacity to understand and evaluate her condition and hence the recommendations made. I gave an ex tempore judgment late on the evening of 14 May 2016, when Fay’s condition worsened, allowing the intervention. I indicated I would publish my detailed reasons at a later time.

In relation to a prior decision of NCAT (with its unsatisfactory limitation of taking evidence by telephone: see [87]), the Court said at [18]:

The effect of the decision is that NCAT did not consider Fay to be incapable of giving consent to the carrying out of the recommended medical treatment. For any number of reasons which I will later develop that decision was erroneous and manifestly so.

The Court proceeded by way of rehearing, with evidence from a number of persons and medical experts. At [79] the Court recorded its view that  Fay did not adequately understand nor was capable of balancing or making an informed decision such as to permit her to refuse the treatment recommended.

On the issue of duress or undue influence, the Court noted at [82] – [[85]:

The influence of her mother was a most significant factor. My very distinct impression was that her mother had run her life for a very long time because Fay was simply incapable of doing it herself. That is not a criticism of her mother, whose heart was and is unquestionably in the right place. As I have clearly said, in my view however Fay’s mother did not herself fully appreciate the significance of the risks faced by Fay and how that would play out if any occurred.

That other members of her family had experienced tragedy as a reason why Fay was able to digest and understand her particular dilemma was unconvincing. The suggestion that Fay would continue to face these risks because she did not want to disappoint her son in not bringing home a little brother was frankly unrealistic and if I may say so irrational in the scheme of things.

No one can fault a parent from being protective even perhaps overly protective. However in some circumstances, and this is but one example, over protection could have had dangerous consequences.

I was satisfied on the evidence in its totality that Fay did not in reality appreciate the true significance of the dilemma she faced. She neither had the strength nor the ability to contest the will of her mother who was well meaning, but frankly misguided.

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