Palliative care – navigating the difficult path of informed consent

by DLA Piper

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.

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.

© DLA Piper | Attorney Advertising

Written by:

DLA Piper

DLA Piper on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.