15th Greek Australian Legal and Medical Conference
Thessaloniki, Greece 2015

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Without reasonable cause? When Plaintiffs Refuse To Undergo A Diagnostic Medical Procedure For The Purposes Of Medical Negligence Litigation - The Coercive Powers Of The Court

Elizabeth Kennedy

The common law has long recognised the principle that every person has the right to have his bodily integrity protected against invasion by others. Only in certain narrowly defined circumstances may this integrity be compromised without the individual’s consent. Unless there is consent to an act of touching by another, such an act will constitute a battery for which damages may be awarded. 1

The classic expression is that of Cardozo J,

Every human being of adult years and sound mind, has a right to determine what shall be done with his own body. And a surgeon who performs an operation without the patient’s consent commits an assault.” 2

As a general rule therefore, every medical treatment, even if of a minor nature, should not proceed unless the doctor has first obtained the patient’s consent.

Conversely, an adult patient has the absolute right at law to refuse well intentioned medical treatment and the Medical Treatment Act of Victoria for example, sets out a albeit little- used certificate to be completed to give legal force and effect to that decision to refuse treatment if made by a competent adult patient.

But there are certain circumstances in which a doctor may be entitled to proceed without consent – for example, in an emergency, where it is necessary to save life. Then, and only then, the doctrine of necessity affords the doctor a defence to any accusation that the tort of assault or battery has been committed.

This paper will examine one other of those circumstances where a doctor may treat without consent or in circumstances where refusal has been overridden - that is, when a court has ordered that the diagnostic or medical procedure is necessary for the purpose of ascertaining an issue which has arisen in the course of a medical negligence case in which the patient is the plaintiff (or claimant).

Under the Rules 3 a court may stay a proceeding if a plaintiff refuses or neglects without reasonable cause to submit to an appropriate medical test or procedure or examination. For example, under Rule 33.4 of the Supreme Court Rules in Victoria:

The defendant may request the plaintiff in writing to submit to appropriate examinations by a medical expert or experts at specified times and places.
(2) Where a plaintiff refuses or neglects, without reasonable cause, to comply with a request under paragraph (1), the Court may, if the request was on reasonable terms, stay the proceeding (emphasis added).

This paper will examine how judges have ascertained in some cases whether or not a plaintiff, in refusing to undergo the “appropriate examinations” sought by the defendant (or the defendant’s insurers) is acting reasonably, and whether they have been prepared (or not) to order the plaintiff to undergo a medical examination or procedure against their will.

It seemed to the writer to be an interesting topic for an audience comprising doctors and lawyers to explore – and so it has been chosen for this paper to be presented at the 15th Greek/Australian Medical Legal Conference.

Doctor/ Patient Relationship

In the High Court case of Breen v Williams 4 the court considered the nature of the doctor patient relationship and concluded that it was one based on trust.

What is the nature of the doctor-patient relationship? Generally there is no relationship of agency. But the relationship of doctor and patient is one where the doctor acquires an ascendancy over the patient and the patient is in a position of reposing trust in the doctor. …
In Canada, the Supreme Court has held that the relationship between doctor and patient casts on the doctor a fiduciary duty to provide the patient with access to his or her medical records: McInerney v MacDonald 5.

The High Court declined to follow Canadian authority that categorises the relationship as fiduciary in nature, but still recognised that it was based on trust.

Compulsory Medical Treatment

Compulsory medical treatment is not unknown - under mental health legislation, for example, compulsory treatment is made possible, but only where voluntary treatment is not possible. For example, the new Victorian Mental Health Act 2014 sets out the principles to be observed. One of those is:

persons receiving mental health services should be provided assessment and treatment in the least restrictive way possible with voluntary assessment and treatment preferred(emphasis added) 6

The treatment of minors, for example, with anorexia or the in need of a blood transfusion may be treated against their wishes, and those of their parents, under the provisions of the Human Tissue Act 1982 (Vic).

Prisoners on a hunger strike have been ordered to be force fed. 7 Indeed I have been reading of the suffragettes and how they were forcibly fed, without it seems any court order.

Many of the women arrested and sent to prison went on hunger strike-only to be force-fed by prison doctors – a brutal system that involved holding the prisoner down and forcing a tube into her mouth, held open by a wooden or steel gag and down her throat. Constance Lytton imprisoned in Holloway in early 1912 had been on hunger strike for four days when she suffered force feeding: she had to lie in her vomit –covered clothes all night as the wardress said it was too late to get her a change of clothing. She lost weight at the rate of 2lb a day and became so emaciated that after her release she often had to eat her meals kneeling as sitting in a chair was too painful 8

In Leigh v Gladstone (1909) 26 TLR 139 a suffragette was forcibly fed after three days on hunger strike. She later attempted to sue for trespass but was not successful. Lord Alverstone, directed the jury, saying:     ‘... as a matter of law it was the duty of the prison officials to preserve the health of prisoners, and a fortiori to preserve their lives’.

As has been extensively researched by Mary Ann Kenny, to whom I am indebted for her learned article in the Alternative Law Review, 9 the issue of the treatment of hunger strikers in UK prisons reached its high-water mark in the cases of hunger-striking Irish prisoners in the 1970s and 80s. In the early 1970s it was the practice to force-feed the hunger strikers and, in one case, a prisoner had been artificially fed for over two years. It was justified as an act of last resort to save the lives of prisoners. This practice caused much debate and concern, particularly in medical circles.
In the UK there has been a gradual shift toward a rights- based approach and the preservation of the individual’s rights. The authority of Leigh v Gladstone was recently rejected by Justice Thorpe in Secretary of State for the Home Department v Robb [1995] 1 All ER 677 at 681. Justice Thorpe considered the arguments for the countervailing state interests and concluded:

It seems to me that within this jurisdiction there is perhaps a stronger emphasis on the right of the individual’s self-determination when the balance comes to be struck between that right and any countervailing interests of the state. So this decision is not a borderline one … The right of the defendant to determine his future is plain. That right is not diminished by his status as a detained prisoner.

In 1998 the Human Rights Act 1988 (UK) came into force and provided that legislation and subordinate legislation must be read and given effect in a way which is compatible with the rights set out under the European Convention for the Protection of Human Rights and Fundamental Freedoms. Since the passing of this Act, there have been several decisions by the House of Lords and the UK Court of Appeal that have reaffirmed the principle of autonomy and self-determination in respect of medical treatment.

For example, the decision in the Secretary of State for the Home Department v Robb was followed in Re W (adult: refusal of medical treatment). That case involved a sentenced prisoner who was gouging his leg with pieces of porcelain so that he would develop fatal blood poisoning. The prisoner told the court he was being denied the treatment he needed for his mental disorder and would rather die than be locked up for 23 hours a day in a high-security segregation wing. He was examined by three psychiatrists who formed the view that he had a mental disorder, but that the disorder had not affected his capacity to refuse treatment. Dame Elizabeth Butler-Sloss, President of the Family Division decided the prisoner had the mental capacity to make the decision to refuse treatment, even if the refusal was life threatening. 10

Courts Coercive Powers in NSW and Victoria Australia

In the unreported decision of Secretary Department of Immigration Local Government and Ethnic Affairs v Gek Bouy Mok and anor 11 the court was concerned with whether detainees on a hunger strike could be force fed. The two defendants in the case were Cambodian boat people who had arrived in Australia without visas: they were “prohibited entrants” or as we know them today “asylum seekers”.

During the course of the hearing a regulation under the Migration Act 1958 authorising the plaintiff to cause medical treatment to be given to the detainee without consent was made. The plaintiff had sought a declaration that it was entitled to feed the defendants against their will.

Turning to the topic of this paper, in the context of authorising medical treatment against the plaintiff’s will in personal injury claims, the cases in Victoria and New South Wales go both ways, with courts having ordered plaintiffs to be subjected to medical diagnostic procedures and not being convinced that the defendant was entitled to the orders sought. This paper will examine some of those recent cases and then also examine the practical difficulties of submitting patients to procedures against their wishes, and what this may or may not do to therapeutic nature of a doctor-patient relationship.

Jean Dikschei

Jean Dikschei sued Epworth Hospital alleging that during the course of her recovery following a surgical procedure at the hospital, a nurse had manipulated her central venous catheter and caused an air embolism to enter her heart causing a stroke. The defendant in the action asked the court to order a trans-oesophageal echocardiogram (TOE) to establish the Plaintiff had a defect present in her hear (from birth) being an incomplete closure of the septum wall or “hole in the heart”. The foramen ovale is a normal and quite important component of foetal circulation allowing oxygenated blood to cross from the right atrium to the left atrium as blood through the foetal lungs is absent. For most people the two components of the septum fuse after birth but in some cases a small communication may still persist giving origin to a PFO. It was said by the Defendant that this was the only way in which an air embolism could have entered her heart. The Plaintiff refused to undergo a TOE and was held by the court to be acting reasonably in refusing.

A TOE is an alternative means of producing an echocardiogram of the heart. It carries more risk than the standard echocardiogram which is essentially risk free. TOE transducer is passed in to the oesophagus, the swallowing tube and is positioned directly behind the heart. During this procedure the Plaintiff is sedated and the gag reflex is suppressed by spraying a local anaesthetic into the back of the throat. The transducer is then passed through the mouth and throat and down the oesophagus. Once in position directly behind the heart, the transducer bounces sounds waves off the heart just as in the standard echocardiogram and the returning soundwaves are processed into images of the cardiac structure.

To quote from the judgement of Associate Judge Mukhtar

In this case, the defendant wishes to conduct a transesophageal echocardiogram relying on the evidence of Mr Neil Strathmore, a cardiologist. He has been a consultant cardiologist at the Royal Melbourne Hospital, and an associate professor of the University of Melbourne. The plaintiff’s lawyers have done internet searches of medical directories which also show that Mr Strathmore currently practises or recently practised at the Victorian Heart Centre at Epworth Health Care in Richmond. That is part of the Epworth Health Care Group. One of his practice addresses is given as the Victorian Heart Centre at 89 Bridge Road, Richmond. He is listed as a cardiologist at Epworth Hospital. None of this was revealed by Mr Strathmore in his affidavit. Mrs Hartley, senior counsel for the plaintiff, was careful not to impugn his integrity but I was asked to approach his evidence with caution.

He accepts that an explanation for what occurred was an embolus from the right side of the heart which would require a connection or shunt between the right and left sides of the heart. The most likely connection would be an atrial septal defect or a PFO as a smaller or more limited version. Without such a defect, he says, it is impossible for air injected in a catheter to enter the arterial system and cause multiple strokes. A shunt at some other place in the cardiovascular system could be excluded.

What does a TOE involve? The probe is passed down the throat in the same way as a gastroscopy. It is not explained whether it involves a forced or deliberate swallowing action or some other physical or muscular action (which might be naturally resisted by an apprehensive patient) to get the instrument “down”. The transducer on the probe is placed in the oesophagus immediately behind the atria giving a visualisation of the interatrial septum. It is performed by a cardiologist in a hospital with a cardiac unit such as Epworth or Melbourne Private Hospital.

Mr Strathmore says the risk of complication is extremely low. He accepts there is potential for damage to teeth, mouth, gums and oesophagus while the probe is passed down the throat. But he says with an experienced operator, that risk is extremely small. He accepts that the light sedation that is administered intravenously may cause temporary disorientation and, or, discomfort but says the risk of that is extremely small. The insertion of the intravenous line, he says, carries minor risks of mild transient pain, temporary bruising and infection.

Mr Strathmore refers to and adopts a journal article by Marco R. Di Tullio of New York in the State of the Art Review Article. It says the TOE is the “gold standard” for the detection of a PFO. I can accept that generally speaking “the literature” in various professional disciplines plays a part in the formation of an opinion particularly in a developing or advancing area. But it is not compelling to say that a medical procedure is risk-minimal and simply point to an author in New York who also says so.

The contents of this article are medico-technical, and not explained or critiqued by Mr Strathmore. But doing the best I can, the article reveals that there are conditions that affect the accuracy of the test. There are references in the article to the use of several contrast injections to enhance diagnosis or sensitivity or the PFO detection rate, and the necessity to obtain from the patient a “Valsalva” manoeuvre (unexplained but said to be difficult to perform when there is excessive medication) and other manoeuvres such as coughing as compared to the resting condition. The article does say that major complications are infrequent and describes the test as semi invasive. It says the procedure is more appropriate in cases that are diagnostically equivocal.

It is not surprising that the court was therefore reluctant to order the Plaintiff to undergo a TOE.

Note too, that the Plaintiff had been offered this procedure as an inpatient at Epworth Hospital, but had refused, through her husband, as it was not necessary for diagnostic or treatment purposes.

It was therefore held by the court for it to not be unreasonable for the Plaintiff to refuse to undergo a TOE, and the court declined to order that she undergo it, holding that she was acting reasonably. 12

Emma Ploughman

Emma Ploughman was born on the 16 July 1989 and was at the time of her trial, 24 years old. Her mother gave birth to her at St John of God Hospital, but unfortunately she had severe cerebral depression at delivery, and required resuscitation with suction, oxygen, bag and mask ventilation. She had seizures following her birth, and was transferred to the Royal Children’s Hospital Melbourne for further treatment. Proceedings brought by the Plaintiff identified her injury at birth as being birth asphyxia with consequential cerebral palsy and intellectual disabilities.

As a result, she claimed damages in negligence, and also for breach of the implied warranties in the Trade Practices Act 1974. The Defendant denied that it was negligent or in breach of the Trade Practices Act, anddid not admit the allegations the Plaintiff suffered hypoxic ischaemic encephalopathy.

The damages claim was a very large one, and under Rule 23.4 of the UCPR, the Defendant sought that the Plaintiff undergo a blood test, for what is colloquially known as a CGH test. This would detect any chromosomal disturbances where an unexplained intellectual handicap had resulted.

This, if proven, would show an alternative explanation of the proposed hypoxic ischaemic basis of Emma Ploughman’s condition. In other words, there was expert evidence that there may be additional reasons contributing to her moderate to severe intellectual handicap.

There was a possibility probably in the order of 10 percent or more that the findings of a CGH array could alter in a very substantial way the allotment of causation of her intellectual disorder, and provide an additional explanation of the aspects of her condition.

The court was prepared to order in these circumstances, that the Plaintiff undergo a blood test, and ordered the Plaintiff to attend within 28 days of the order, one of several specified pathology collection centres, for the purposes of obtaining a blood sample which was to then be subjected then to array comparative genomic hybridisation testing, as arranged by the Defendant. 13

Downing v Wein (2005) VSC 134

Justice Kaye in the Victorian Supreme Court ordered that a young boy aged 10 to undergo an MRI in the course of a medical negligence action brought against his mother’s gynaecologist, arising out of his birth at a hospital in Melbourne in July 1999. The Plaintiff was born with brain damage, and claimed that his mother was suffering from an intrauterine infection one (1) week before the birth, and that the gynaecologist and hospital were negligent in their treatment of his mother. It was requested by the defendants that the 10 year old boy undergo an MRI scan in order to assist on the issue of causation -as the case had proceeded on the unusual basis that the gynaecologist was negligent in his treatment of the plaintiff’s mother, having inserted an intrauterine device after he had failed to terminate the pregnancy -which had subsequently produced the Plaintiff.

The critical issue was whether that request that the boy undergo an MRI was reasonable, and whether the refusal by the plaintiff, through his litigation guardian, to undergo the MRI scan was without reasonable cause.

Justice Kaye was satisfied by the evidence that the scan was for legitimate purposes relating to the central issue in the litigation, namely causation. He noted that an MRI scan was “more intrusive” than for example, an X-Ray. He also noted that it was suggested that in particular circumstances contrast dye might be injected into the Plaintiff, and that the Plaintiff might feel “claustrophobic” in undergoing an MRI.

Counsel for the litigation guardian also raised concerns about an “emotional response” in the boy in undergoing an MRI scan which would last for a period of 25 minutes. It was noted by the learned judge that some people to whom an MRI scan is administered can have a claustrophobic response. The Defendant’s expert witness had expressed the view however, that the Plaintiff would have “no difficulty” coping with a 45 minute MRI scan.

Justice Kaye was satisfied that there was “no evidence” that the Plaintiff was likely to “suffer” as a result of the MRI, provided it could be administered without general anaesthetic, and without use of contrast dye.

He therefore ordered in terms of Order 33.04 of the Supreme Court Rules, that the Plaintiff undergo within a reasonable time an MRI, or the action would be stayed.

Aspinall v The Sterling Mansell Ltd [1981] 3 All ER 866

In the English case of Aspinall v The Sterling Mansell Ltd [1981] 3 All ER 866 the court distinguished between examinations that do not involve “any serious technical assault” against those that involve only an “invasion of privacy” and examinations involving some technical assault, some examinations involving substantial assault, but without involving discomfort and risk, and those involving risk of injury or to health.

The learned judge made these observations but without referring to whether a “technical assault” was in fact “court authorised battery” and whether the patient’s consent was paramount.

Practical Difficulties of Court - Ordered Treatment

None of these cases appear to really appreciate the practical difficulties for health practitioners of court- ordered treatment.

In the case of Emma Ploughman, for example the notes of the Hunter New England Health Service were produced to the court, and showed that the plaintiff had undergone an MRI procedure under a general anaesthetic, which had been delivered by an intravenous catheter, and that the plaintiff had been intubated.

The Judge took great care to note that an intravenous catheter had been introduced to her left hand and that the records did not indicate “any adverse consequences” to the plaintiff from this procedure. He was therefore happy to order that the plaintiff submit herself against her will for the taking of bloods for a genetic test.

He also noted that the medical records produced by the General Practitioner showed that the plaintiff had undergone on a number of occasions various vaccinations, and that there was “no adverse reaction” (by her) recorded, nor any note of “any phobia or anxiety” on the plaintiff’s part.

Evidence from the plaintiff’s father however was, that the plaintiff was “frightened of needles” and that her parents generally disguised from her the fact that she would have to visit a doctor for any reason. One suspects that the hospital records did not record this anxiety on the part of the intellectually disabled plaintiff on any occasion, and that a paternalistic approach to her treatment by vaccination or otherwise was taken by those administering treatment with the consent of her parents.

The Right to Self-Determination: after Rogers v Whittaker [1992] HCA 58

In the land mark case of Rogers v Whittaker, the High Court of Australia emphasised the need for patients to choose to undergo medical treatment, including diagnostic tests. In legal terms, it was recognised that the patient’s consent to treatment (including diagnostic tests) is only valid once he or she has been informed in broad terms of the nature of the procedure which is intended.

It was recognised that the choice was in reality “meaningless” unless it was made on the basis of relevant information and advice. It follows therefore, that competent adult patients have a right to refuse medical treatment, but that when bringing a medical negligence claim against health care providers, there is a twist. Competent adult patients may not unreasonably refuse to undergo medical diagnostic treatment if it concerns an issue arising in the proceedings, such as causation.

In those circumstances, the patient’s right to self-determination is put, by the court, to one side.

The Rules of Court 14 provide that a proceeding may be stayed if a patient-plaintiff refuses or neglects without reasonable cause to submit to an appropriate examination.

Patient choice is therefore on one view irrelevant.

The courts may override the refusal of the Plaintiff.

How then does a doctor (or nurse) treat such a patient-plaintiff? Is it battery or assault or an invasion of privacy?

Whilst there is immunity from suit if a court order has been obtained, there are very many practical difficulties in treating plaintiffs, especially minors or intellectually disabled patients against their will.

What does this do to the therapeutic relationship between the doctor and the patient, say between the Children’s Hospital and its patient undergoing an MRI, between nurses and their patients, or in the taking of blood, for example?

X v The Sydney Children’s Hospital

In X v The Sydney Children’s Hospital a Jehovah’s Witness 17 year old young man refused a blood transfusion. He was suffering from a cancer. He was ordered by the court to undergo an administration of blood, blood products and platelet therapy and the reinfusion of his own blood, and any treatment ancillary to those treatments by any qualified practitioner on the staff of the Children’s Hospital.

The reason for those added words “any treatment ancillary to those treatments” was because there was evidence before the court that the patient would resist blood transfusions physically by attempting to dislodge the IV needle in his arm.

Whilst the orders were based on the parens patriae jurisdiction of the Supreme Court of New South Wales, this case illustrates the practical difficulties of doctors treating patients pursuant to a coercive court order. This case is of particular note because the defendant-patient was nearly 18 years of age ( a legally competent adult) and physically strong.

“Without Reasonable Cause”

In all cases where an order for submission to a medical test is sought, under the Rules, the court must focus on whether the patient’s refusal has been made without reasonable cause, and must in considering all the circumstances weigh up the benefits and disadvantages.

At the end of the day, the court will order the person to undergo diagnostic medical procedures against their wishes only if the court is satisfied that the refusal is without reasonable cause. As more cases evolve, it will be interesting to see how the medical profession carries out these court - ordered procedures, and whether legal practitioners must, before legal proceedings are commenced in negligence, advise their client of the ability of the defendant to seek a court order to override their wishes if a stay the proceedings is to be avoided.

Charter of Human Rights and Responsibilities

Under the Victorian Charter of Human Rights and Responsibilities Act 2006

A person must not be—

(a) subjected to torture; or

(b) treated or punished in a cruel, inhuman or degrading way; or

(c) subjected to medical or scientific experimentation or treatment without his or her full, free and informed consent (emphasis added) 15

A court order clearly subjects a person to medical treatment without their consent.

To date, there has been to the best of the writer’s knowledge, no Charter argument advanced in any court application by a defendant for an order under the Rules of court the subject of this paper.

Watch this space!

Elizabeth Kennedy B.A LL. B (Hons) LL. M (Melb) Grad Dip Health&Med Law (Melb)

General Counsel and Corporate Secretary
Peter MacCallum Cancer Centre Melbourne

Senior Lecturer

Dept of Epidemiology and Preventive Medicine
Monash University

Footnotes

1 Mason & McCall Smith Law and Medical Ethics (Butterworths) at p.141

2 Scholoendorff v Society of New York Hospital 105 NE 92 (NY 1914)

3 See for example Supreme Court of Victoria Rule 33.04 and Rule 23.4 of the UCPR

4 [1996] HCA 57; (1996) 186 CLR 71

5 (1992) 93 DLR (4th) 415 at 424.

6 See s 11 Mental Health Act 2014 (Vic)

7

8 Anne de Courcy Margot at War Love and Betrayal in Downing Street 1912-1916  at page 31

9 Kenny, Mary Anne --- "Force feeding Asylum  Seekers”  (2002) 27(3) Alternative Law Journal 107

10 Kenny, Mary Anne --- "Force feeding Asylum  Seekers”  (2002) 27(3) Alternative Law Journal 107

11 Discussed as a case note in the Australian Law Journal Volume 67 August 1993

12 Dikschei v Epworth Foundation [2010] VSC 435

13 Plowman v St John of God Inc [2014] NSWSC 333

14 Above see footnote 3

15 Section 11 Charter of Human Rights and Responsibilities Act 2006 (Vic)