Palliative care – navigating the difficult path of informed consent

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Medical practitioners are placed in a difficult position when close family members disagree about the treatment that should be provided to a loved one who is no longer capable of making his or her own decisions. 

The New South Wales Court of Appeal’s recent decision in Lane v Northern NSW Local Health District (No 3) [2014] NSWCA 233 highlights the legal risks associated with managing the competing wishes of family members.

Mrs Lane had a seizure at her home and was taken to hospital by ambulance. She was unresponsive and suspected of having suffered a brain injury due to a lack of oxygen. Her husband was her legal guardian. He was therefore was responsible for giving or withholding consent to the treatment Mrs Lane received at the hospital. Family meetings were held to discuss Mrs Lane’s treatment. After receiving advice from Mrs Lane’s doctors, Mr Lane accepted that Mrs Lane’s death was unfortunately inevitable. He therefore decided that steps should not be taken to prolong her life beyond its natural course.  Mrs Lane died two weeks later.

Mrs Lane’s daughters had disagreed with Mr Lane’s decision. They sued the body corporate responsible for the hospital’s operation for damages for psychiatric injuries. They argued that Mr Lane’s consent to Mrs Lane receiving only palliative care was not fully informed because the hospital had not told him about other treatment options. They therefore said that the hospital’s treatment of Mrs Lane had been negligent and that they had a valid claim for damages for psychiatric injuries caused by witnessing her treatment and her ultimate death.

The Court of Appeal dismissed this argument. In a unanimous decision, the Court said that the expert evidence at trial did not support a finding that that alternative advice should been given to Mr Lane  because the consensus of opinion was that Mrs Lane was at the end of her life. The Court found that the hospital could have done nothing more than provide palliative measures to keep her comfortable.

Mrs Lane’s daughters also argued that the hospital had not complied with a NSW Department of Health document called ‘End-of-Life Care and Decision-Making – Guidelines.’ The guidelines contained instructions about the importance of communication between health professionals, patients and families and advice on how to resolve disputes within families. The daughters contended that the guidelines set out a standard which, if not complied with, would demonstrate negligence on the part of the hospital which entitled them to damages.

The Court of Appeal also dismissed this argument. The Court held that the hospital’s standard of care was not defined by guidelines such as these, but from the expert evidence of relevant health care professionals identifying ‘competent professional practice’ for the purposes of the Civil Liability Act.  The Court found that the medical evidence led at trial regarding Mrs Lane’s appropriate treatment supported the trial judge’s finding that there had been no breach of the hospital’s duty of care.

While the daughters’ claim was not successful, the case highlights the legal risks associated with informed consent in a palliative care context. Despite the Australian Institute of Health and Welfare’s latest report on medical indemnity claims indicating that claims relating to consent to treatment are decreasing, the potential for multiple psychiatric injury claims arising from a decision to provide only palliative care to a patient emphasises the importance of ongoing training and guidance for health practitioners when communicating with decision-makers in these difficult, emotional and distressing circumstances.

Topics:  End-of-Life-Care, Informed Consent

Published In: Personal Injury Updates, Professional Malpractice Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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