On November 11, 2004 a New South Wales Supreme Court judge was requested by the family of a critically ill man, Isaac Messiha, to require a hospital to provide further intensive care treatment. Without this treatment, it was very likely that the man would die. The judge declined to make that order and the man died when the hospital removed the ventilator that was artificially helping him to breathe.
Five days later, an article by Alex Perrottet that was very critical of the Messiha decision was posted on On Line Opinion. This article seeks to provide an alternative perspective and further explain the decision.
Although New South Wales had not had a decision like this before, from a legal view point, the case says very little that is new. The common law does not require doctors to provide futile treatment and a good example of this is the recent case of Baby Charlotte in England. In that case, the English High Court concluded that, despite strong family objections, the futility of further invasive and aggressive treatment meant that it was not in Charlotte’s best interests to receive it.
A second issue to consider is the decision of Northridge to which Perrottet referred. In that case, Northridge (who was the sister of a patient called John Thompson) asked the New South Wales Supreme Court to require the hospital to reinstate medical treatment he needed to stay alive. Although Northridge raises similar issues, the reason that this case is different from Messiha is that the medical evidence in Northridge was damning of the medical team that was caring for Thompson. In particular, there were very grave concerns about the premature diagnosis of Thompson’s condition. In that case, the judge was rightly concerned about the decisions to withdraw life-sustaining medical treatment because other doctors were very critical of doing this. Accordingly, an order was made that the treatment should be provided until further order of the court.
The medical evidence in Messiha was radically different in that all three doctors who examined the patient were of the view that the treatment was futile. Dr Prior, who provided a second opinion, was of the view that, “There is no realistic possibility of meaningful recovery of cerebral function … I see no useful therapeutic measures indicated”. Professor Lance, who was a neurologist not attached to the hospital, also examined Messiha at the request of his family and in their presence. His assessment was that “There was no real prospect of a significant recovery of the patient and that the continued treatment in the Unit could not be justified on purely medical grounds”.
There was some suggestion from Messiha’s family that he had moved his eyes in response to voices and, on a few occasions, had been able to focus his eyes on friends and relatives. However, there was no support for this in the medical evidence. Indeed, the judge noted that even the evidence of the doctor engaged by the family, Professor Lance, was inconsistent with their claim of eye movement.
Perrottet’s assertion that the cases can be compared is misplaced. In Northridge, there was clear evidence of the inadequacy of the medical decisions made, whereas in Messiha, all of the doctors (including an independent doctor engaged by the family) agreed that further treatment was futile.
Perhaps it is worth thinking about what possible consequences might flow from adopting the view expressed by Perrottet that family should determine whether medical treatment is futile or not, rather than doctors. In the case of Messiha, one question worth asking is whether the judge had any choice but to reach the decision he did. The judge was confronted with three medical witnesses, which included an independent doctor engaged by the family, all of whom said the same thing: further intensive care treatment was not warranted. It is suggested that the only reasonable decision open to the judge was to accept that undisputed evidence and reach the decision that he did.
Another consequence of the approach suggested by Perrottet is that a hospital could be required to keep a patient alive for 10, 20 or 30 years awaiting a potential miracle recovery. If it is families making the decision, despite the chance of recovery being virtually non existent, the doctors would be unable to stop treatment because a family insisted on continued care. This is clearly an undesirable outcome.
Our view is that the decision reached in Messiha’s case is appropriate and indeed consistent with other decisions around the world. We agree that there is good reason to be vigilant in assessing the quality of medical decision making in these sorts of cases. Northridge is an excellent reminder of this. However, when a court is confronted by unanimous medical opinion (including independent evidence) which is accepted as sound and reasonably based, there is no choice other than to accept that the treatment is futile and allow it to be withdrawn.
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