Supreme Court of NSW to consider/deliver a baby with the knowledge of death.

On application by a Local Health District, the Supreme Court of NSW was recently required to consider whether orders should be made to deliver a baby with the knowledge that such action would likely result in the death of the baby. The application concerned a 19 year old patient who suffered from an intellectual disability and was approximately 22 weeks pregnant. She has a 4 year old son and is a single mother. She was recently admitted with a placental haematoma and progressive renal failure, which was entirely related to her pregnancy. At the time of the application her condition was deteriorating and her blood pressure was unable to be controlled. There was a significant risk of permanent cerebral damage and death if the pregnancy was allowed to continue. The patient wanted to allow the pregnancy to continue however, she did consent to delivery of the baby in the event of ‘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’.

The Court was required to consider whether the patient had the requisite capacity to reject the medical advice to bring the pregnancy to an end and deliver the baby. That is, did the patient have the capacity to exercise her well known right to self-determination? The Court was also required to consider the appropriateness of a decision made by the NSW Civil & Administrative Tribunal on 12 May 2016, 2 days prior to this application, in which they rejected the request for authority to proceed with delivering the baby.

The Court noted that there is a rebuttable presumption that adults have the capacity to consent or refuse medical treatment. The nature and importance of the decision are highly relevant to an assessment of a person’s capacity. Generally, people lack the requisite capacity where they cannot understand the consequences of their decision or where they cannot use and weigh up the relevant information when making a decision.

In this case the Court accepted that the questioning of the patient revealed she lacked any real understanding as to the difficult decision that faced her. The medical evidence was uncontroversial. The patient faced real and significant risks of suffering from a number of complications in the event that the baby was not delivered. Accepting that the patient did not adequately understand the situation or was she able to balance or make an informed decision it was not permissible for her to refuse the recommended treatment.

Post by Karen Kumar and Cameron Leaver