Urgent applications concerning life support, foetus viability and organ donation
The recent decision of Millard v ACT  ACTSC concerned a costs application in urgent proceedings that had mostly resolved. It provides helpful commentary on issues between a spouse, a hospital and family members concerning life support and organ donation.
The circumstances are tragic. On 16 May 2020, Ms Reno had an argument with her partner (the plaintiff) and left by car with her 2 children. Ms Reno was 19 weeks pregnant with the plaintiff’s child. She was involved in a serious car accident sustaining head injuries and was airlifted to the Canberra Hospital, where she was admitted to the ICU.
Some of Ms Reno’s family raised concerns regarding the plaintiff’s treatment of her, and thought that she was in the process of leaving him when she crashed. This seems to be why the Hospital, 2 days later, only allowed the plaintiff to see Ms Reno for 1 hour.
On 18 May 2020, Ms Reno was “progressing to brain death”. On 19 May, Ms Reno’s father, as the senior available next of kin, authorised organ donation. On 20 May, Ms Reno was pronounced life extinct (with organ support continuing). On 19 May, the plaintiff presented the Hospital with Ms Reno’s Enduring Power of Attorney, which, during her life, gave the plaintiff authority in relation to her healthcare matters.
On 21 May 2020, following discussions with the plaintiff’s lawyers, the Hospital agreed it would not terminate organ support until the next morning.
That afternoon the plaintiff sought urgent injunctive relief to restrain the Hospital from terminating organ support because he wanted to investigate the viability of the foetus and prospects of Ms Reno improving. Those orders were made.
Later that day, the plaintiff brought a second application for orders to continue organ support and for an independent specialist to examine Ms Reno.
The second application also sought to invoke the Court’s Parens Patriae jurisdiction. This allows the Court to make decisions in a patient’s best interests, primarily in situations where patients cannot make decisions themselves.
The Court explained that this jurisdiction depends upon the person being alive. It was not available here as Ms Reno was brain dead with the meaning of the Transplantation and Anatomy Act 1978 (ACT) (the TAA).
Urgent steps to resolve
On 22 May 2020, Professor Brew, Sydney neurologist who we regularly see in medical negligence litigation, assessed Ms Reno.
On the morning of 25 May 2020, he provided a written opinion that Ms Reno satisfied the criteria for brain death.
During an urgent Court hearing on the afternoon of 25 May 2020, the plaintiff also sought orders preventing organ donation. The plaintiff said that Ms Reno had told him that, because of her aboriginal custom, she did not want to donate her organs and wished to be cremated as a whole person. The essence of the argument was that the plaintiff should have been the “senior available next of kin” under the TAA.
The matter proceeded to Court ordered mediation the next day. During that process, a different ‘designated officer’ (a position under the TAA) made a fresh decision about whether to authorise organ donation. They were unable to form a concluded view about whether Ms Reno had objected to organ donation and whether Ms Reno, immediately before her death, was in a domestic partnership with the plaintiff (and thus whether he was the “senior available next of kin”). Accordingly, they could not authorise organ donation.
The Court was critical of the Hospital, commenting “the Hospital’s attitude to the plaintiff and associated communication deficiencies fuelled this unfortunate litigation, which has been traumatic for all concerned”. Each party was to pay its own costs of the second application. By agreement, the Hospital paid the plaintiff’s costs of the first application.
Hospitals often deal with urgent matters that not only involve complex or novel medico-legal issues but also tense and emotional personal circumstances as well as cultural considerations. It is best for all involved when these issues are resolved promptly through transparent communication with appropriate supports. From the hospital’s point of view, this can involve obtaining timely and practical legal advice from the outset.
The full decision is available here. https://courts.act.gov.au/supreme/judgments/millard-v-australian-capital-territory