Written by: UQ Associate Lecturer Kate Curnow
UQ Associate Lecturer Kate Curnow
During the course of a pregnancy, a woman may need to make many decisions about current or future medical treatment. Those decisions may be about routine procedures and medication (for example, blood tests and antibiotics) or life sustaining treatments (for example, an emergency caesarean or blood transfusion). Recent Australian cases have suggested that the interests of the foetus may need to be taken into account when considering a refusal of treatment by a competent pregnant woman.
If a competent adult decides to refuse a treatment, that instruction may be communicated contemporaneously[1] or, in the case of future treatment, through an advance directive that will come into effect if the woman loses legal capacity. In most Australian jurisdictions, refusals of future treatment can be made through statutory advance directive regimes as well as under common law principles. The common law is also the key source of the principles that govern contemporaneous refusals by competent adults.
The common law position is that, in the absence of a widespread and dangerous threat to the health of others and undue influence, a competent adult can refuse specific or all care and medical treatment even if the refusal is intended to, or is likely to, result in the adult’s death or injury. In the case of such a refusal, the competent adult’s right of autonomy outweighs any state interest in preserving life. Significantly, the basis for the refusal is irrelevant, whether it be personal philosophy or beliefs, cultural or religious traditions, or no identifiable reasons at all.[2]
The position of refusals of treatment by pregnant women is less clear. As yet, no Australian case has adjudicated on a refusal of treatment by a competent pregnant woman under the common law. However, obiter comments suggest the principles that may apply to such a scenario are different to those of other competent adults. In Hunter and New England Area Health Service v A,[3] McDonnell J cited Donaldson LJ’s statement in Re T (Adult: Refusal of Treatment) [1993] Fam 95 that “a case in which the choice may lead to the death of a viable foetus” was a “possible qualification to the paramountcy of [the individual’s right of] autonomy”.[4] McDonnell J then referred to in Re S[5] in which a pregnant woman’s refusal of a caesarean section was overridden due to the risk not having the operation posed to her unborn child.[6] In H Ltd v J,[7] Kourakis J referred to McDonnell J’s statements in Hunter and New England Area Health Service v A[8] with apparent approval.
The courts in Hunter and New England Area Health Service v A[9] and H Ltd v J[10] did not, however, consider decisions after 1993 by British courts which reject the existence of a state interest in preserving the life of a viable foetus. In Re MB,[11] the Court of Appeal unanimously expressed the view that the decision in Re S[12] and the comments in Re T (Adult: Refusal of Treatment)[13] referred to above are incorrect. The Court of Appeal concluded that:
“The law is, in our judgment, clear that a competent woman who has the capacity to decide may, for religious reasons, other reasons, or no reasons at all, choose not to have medical intervention, even though….the consequence may be the death or serious handicap of the child she bears or her own death….The foetus up to the moment of birth does not have any separate interests capable of being taken into account when a court has to consider an application for a declaration in respect of a caesarian section operation.”
The decision in Re MB[14] was affirmed in St George's Healthcare NHS Trust v S; R v Collins and others, ex parte S.[15] The law in Canada mirrors the law in Britain.[16] The position in the United States is not as certain, as discussed by the Court of Appeal in Re MB.[17]
So what then is the true position in Australia? The High Court has held a foetus has no rights of its own at common law until it is born.[18] Following the reasoning in Re MB,[19] it therefore seems unlikely that the Australian common law recognises a state interest in preserving the life of a viable foetus. Accordingly, a refusal of treatment by a competent pregnant woman should be treated in the same way as a refusal by any other competent adult, unless legislation expressly provides otherwise.
[1] “Contemporaneous refusal” refers to a refusal of care or medical treatment by a competent adult given at the time a decision must be made about whether to withdraw or withhold care or medical treatment and excludes a refusal made in an advance directive.
[2] Hunter and New England Area Health Service v A (2009) 74 NSWLR 88; H Ltd v J (2010) 107 SASR 352; Brightwater Care Group (Inc) v Rossiter (2009) 40 WAR 84
[3] (2009) 74 NSWLR 88 at [19].
[4] Re T (Adult: Refusal of Treatment) [1993] Fam 95 at 102.
[5] [1993] Fam 123.
[6] Hunter and New England Area Health Service v A (2009) 74 NSWLR 88 at [20].
[7] 107 SASR 352 at [47].
[8] (2009) 74 NSWLR 88 at [19].
[9] (2009) 74 NSWLR 88 at [19].
[10] 107 SASR 352.
[11] [1997] EWCA Civ 1361.
[12] [1993] Fam 123.
[13] [1993] Fam 95.
[14] [1997] EWCA Civ 1361.
[15] [1998] 3 All ER 673.
[16] Winnipeg Child and Family Services (Northwest Area) v G (1997) 3 BHRC 611.
[17] [1997] EWCA Civ 1361.
[18] Attorney-General (Qld) (Ex re Kerr) v T (1983) 46 ALR 275 at 277.
[19] [1997] EWCA Civ 1361.