Euthanasia - International Position - Australian Jurisdiction

Moving to Australian jurisdiction, in Hunter and New England Area Health Service v. A, [2009] NSWSC 761 the Supreme Court of New South Wales considered the validity of a common law advance directive (there being no legislative provisions for such directives in NSW) given by Mr. A refusing kidney dialysis.

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 215 OF 2005

Common Cause (A Regd. Society) ...Petitioner(s)

Versus

Union of India and Another …Respondent(s)

J U D G M E N T

Dipak Misra, CJI [for himself and A.M. Khanwilkar, J.]

I N D E X

S. No. Heading A. Prologue B. Contentions in the Writ Petition C. Stand in the counter affidavit and the applications for intervention D. Background of the Writ Petition D.1 P. Rathinam’s case – The question of unconstitutionality of Section 309 of the Indian Penal Code D.2 Gian Kaur’s case – The question of unconstitutionality of Section 306 of the Indian Penal Code D.3 The approach in Aruna Shanbaug qua Passive Euthanasia vis-à-vis India D.4 The Reference E. Our analysis of Gian Kaur F. Our analysis of Aruna Shanbaug qua legislation G. The Distinction between Active and Passive Euthanasia H. Euthanasia : International Position H.1 U.K. Decisions: H.1.1 Airedale Case H.1.2 Later Cases H.2 The Legal position in the United States H.3 Australian Jurisdiction H.4 Legal position in Canada H.5 Other Jurisdictions H.6 International considerations and decisions of the European Court of Human Rights (ECHR) I The 241st Report of The Law Commission of India on Passive Euthanasia J. Right to refuse treatment K. Passive Euthanasia in the context of Article 21 of the Constitution. K.1 Individual Dignity as a facet of Article 21 L Right of self-determination and individual autonomy M. Social morality, medical ethicality and State interest N. Submissions of the States O. Submissions of the Intervenor (Society for the Right to Die with Diginity) P. Advance Directive/Advance Care Directive/ Advance Medical Directive (a) Who can execute the Advance Directive and how (b) What should it contain? (c) How should it be recorded and preserved (d) When and by whom can it be given effect to (e) What if permission is refused by the Medical Board (f) Revocation or inapplicability of Advance Directive Q. Conclusions in seriatim

H.3 Australian Jurisdiction:

97. Moving to Australian jurisdiction, in Hunter and New England Area Health Service v. A, [2009] NSWSC 761 the Supreme Court of New South Wales considered the validity of a common law advance directive (there being no legislative provisions for such directives in NSW) given by Mr. A refusing kidney dialysis. One year after making the directive, Mr. A was admitted to a hospital emergency department in a critical state with decreased level of consciousness. His condition deteriorated to the point that he was being kept alive by mechanical ventilation and kidney dialysis. The hospital sought a judicial declaration to determine the validity of his advance directive. The Court, speaking through McDougall J., confirmed the directive and held that the hospital must respect the advance directive. Applying the common law principle, the Court observed:-

―A person may make an 'advance care directive': a statement that the person does not wish to receive medical treatment, or medical treatment of specified kinds. If an advance care directive is made by a capable adult, and it is clear and unambiguous, and extends to the situation at hand, it must be respected. It would be a battery to administer medical treatment to the person of a kind prohibited by the advance care directive.‖

98. In Brightwater Care Group (Inc.) v. Rossiter, [2009] WASC 229 : 40 WAR 84 the Court was concerned with an anticipatory refusal of treatment by Mr. Rossiter, a man with quadriplegia who was unable to undertake any basic human function including taking nutrition or hydration orally. Mr. Rossiter was not terminally ill, dying or in a vegetative state and had full mental capacity. He had ‗clearly and unequivocally‘ indicated that he did not wish to continue to receive medical treatment which, if discontinued, would inevitably lead to his death. Martin, CJ, considering the facts and the common law principle, held :-

―At common law, the answers to the questions posed by this case are clear and straightforward. They are to the effect that Mr Rossiter has the right to determine whether or not he will continue to receive the services and treatment provided by Brightwater and, at common law, Brightwater would be acting unlawfully by continuing to provide treatment [namely the administration of nutrition and hydration via a tube inserted into his stomach] contrary to Mr Rossiter's wishes.‖

99. In Australian Capital Territory v. JT, [2009] ACTSC 105 an application to stop medical treatment, other than palliative care, was rejected. The man receiving treatment suffered from paranoid schizophrenia and was, therefore, held not mentally capable of making a decision regarding his treatment. Chief Justice Higgins found that it would be unlawful for the service providers to stop providing treatment. The Chief Justice distinguished this situation from Rossiter as the patient lacked ‗both understanding of the proposed conduct and the capacity to give informed consent to it‘. It is clear that mental capacity is the determining factor in cases relating to selfdetermination. Since the right of self-determination requires the ability to make an informed choice about the future, the requirement of mental capacity would be an obvious prerequisite. Chief Justice Higgins undertook a detailed analysis and rightly distinguished Auckland Area Health Board v. Attorney-General, [1993] NZLR 235 in which a court similarly bound to apply the human right to life and the prohibition on cruel and degrading treatment found that futile treatment could be withdrawn from a patient in a persistent vegetative state. He agreed with Howie J. in Messiha v. South East Health, [2004] NSWSC 1061 that futility of treatment could only be determined by consideration of the best interests of the patient and not by reference to the convenience of medical cares or their institutions.

100. The above decision basically considered the circumstances in which technically futile treatment may be withdrawn from patients at their direct or indirect request or in their best interests.