back to news

Advance care directives - Recent decision of Hunter and New England Area Health Service v A [2009] NSWSC 761

Newsletter 17 September 2009

Recent Decision of Hunter and New England Area Health Service v A [2009] NSWSC 761

A person may make an ‘advance care directive’ which states that they do not wish to receive medical treatment, or specific medical treatments. If an advance care directive (“ACD”) is made by a capable adult, is clear and unambiguous, and extends to the situation at hand, it must be respected.

This case highlights the conflicting interests of a competent adult’s right of self determination (the right to control one’s own body); and the interest of the State in protecting and preserving the lives and health of its citizens.


Mr A, a Jehovah’s Witness, had been admitted to the emergency department in a critical state with a decreased level of consciousness. His condition later deteriorated, resulting in renal failure. He was kept alive by mechanical ventilation and kidney dialysis.

The hospital later became aware of an ACD prepared one year earlier, which indicated Mr A would refuse dialysis. The absence of the dialysis would undoubtedly hasten his death. The hospital sought a judicial declaration to determine the validity of the ACD given by Mr A.

Decision (dated 6 August 2009)

The Supreme Court declared the ACD was valid. Justice McDougall clarified that this case was not concerned with the ‘right to die’ - but the recognition of Mr A’s right to refuse medical treatment.

Nota Bene

The Court noted that ACDs are not always executed by legal professionals, and that “the court must feel a sense of actual persuasion that the individual acted freely and voluntarily, and intended his or her decision to apply to the situation at hand”.

A decision to refuse medical treatment by a patient with capacity does not have to be sensible, rational or well considered. Even a decision which lacks any apparent justification must be respected – regardless of how unwise those choices may appear to others. This is especially the case where social, religious or moral values underpin the decision in question.
Unless the presumption of capacity is rebutted, or there is evidence which would result in a vitiation of that consent (eg: undue influence; the terms of consent were ambiguous; or no proper explanation of the medical treatment was provided despite adequate opportunity to do so), the individual’s right must be respected.

The individual’s right to self determination may be judicially overridden in exceptional circumstances: to deal with a widespread and dangerous threat to the population at large; or where the exercise of the individual’s right would lead to the death of a viable foetus.

Treatment may also be administered when it is not practicable to obtain consent. This ‘emergency principle’ would also apply where there was a reasonable basis for doubting the validity and applicability of an ACD. Health professionals should note that these principles extend beyond medical practitioners - and even apply to ambulance officers and paramedics.

Don Munro, Partner

Newsletter 17 September 2009
back to news