CONCLUSION
106 Mr Thompson is unarguably alive. He moves, responds, is able to write, articulate and to control a number of muscular and bodily functions. According to the material last put before the court he was then in a nursing home under the control of the defendant.
107 A number of areas of serious concern are thrown up by the present case. The first relates to the way in which and time at which the diagnosis of "chronic vegetative state" was arrived at. The very terminology used in the diagnosis is challenged by medical practitioners knowledgeable and skilled in relation to the care and treatment of patients who have suffered brain damage either as a result of head injury or some other cause. The terminology adopted in the United Kingdom is "permanent vegetative state". Whilst there is no formal nomenclature in Australia it is, from a laymen's point of view, not difficult to equate "chronic" with "permanent" when describing a vegetative state. However the two descriptions may not be synonymous. A second problem is that, assuming that the diagnoses of chronic vegetative state and permanent vegetative state are synonymous, there is no adopted or recognised standard in Australia in relation to the making of such a diagnosis. On different occasions during the course of the matter the defendant confirmed that there was no standard for the making of such a diagnosis and, a fortiori, no standard or guidelines in relation to the withdrawal of conventional medical treatment and artificial feeding from patients who are diagnosed as being in such a vegetative state.
108 This is in marked contrast with the situation in the United Kingdom where there are published guidelines, criteria or requirements which must be met before a diagnosis of permanent vegetative state is made and before there can be a termination of artificial feeding, treatment and support.
109 First, the diagnosis of "permanent vegetative state" is recognised as "not absolute but based on probabilities". Second, such a diagnosis may not reasonably be made until the patient has been in a permanent vegetative state following head injury for more than 12 months or following other causes of brain damage for more than 6 months. Third, during these periods the guidelines require that, as soon as the patient's condition has stabilised, rehabilitative measures such as coma arousal programs should be instituted. Fourth, the termination of treatment, artificial feeding and hydration of patients in a permanent vegetative state will in virtually all cases require the sanction of a High Court judge. In considering such an application the views of the next of kin or others close to the patient, whilst not acting as a veto to the application, must be taken fully into account by the court. Furthermore, there should be at least two independent reports on the patients from neurologists or other doctors experienced in assessing disturbances of consciousness. This is important as it ensures that there is no conflict of interest or perception of conflict of interest. These doctors must undertake their own assessments separately and in forming their opinions "must ask medical and other clinical staff and relatives and carers about the reactions and responses of the patient (since) it is important to take into account the descriptions and comments given by relatives and carers … who spend most time with the patient" (bold added)
110 The usual relief sought in England in respect of patients from whom artificial feeding, hydration and treatment are sought to be withdrawn, is by way of declaration that:
"the responsible medical practitioners … may lawfully discontinue all life sustaining treatment and medical support measures, (including ventilation, nutrition and hydration by artificial means) designed to keep (the patient) alive in (his or her) existing permanent vegetative state".
111 The standard form of relief recognises that there may be a material change in the existing circumstances before such withdrawal by providing that any party has liberty to apply for such further or other declaration or order as may be appropriate (see Practice Note (1996) 4 All ER 766).
112 The existence of the standard and guidelines and the practice of the court clearly regard the diagnosis of permanent vegetative state as fraught with difficulties and as being one which should be arrived at only after a lengthy period, in which there is no change in the state of consciousness of the patient. Furthermore, the requirement that termination of treatment, artificial feeding and hydration be only with the prior sanction of a High Court judge, is a clear recognition of the right of unconscious patients to have their right to life protected by the full power of the law.
113 There is an obvious need for clear and precise criteria for the diagnosis of permanent (or chronic) vegetative state Australia, and for the circumstances in which conventional medical treatment, support and nutrition may be withdrawn from a patient in respect of whom a diagnosis of permanent (or chronic) vegetative state has been properly made. There is also a need for such criteria to be such as to ensure that conflicts of interest, or the perceptions of conflicts of interest, be avoided.
114 In the instant case it is clear that the observations of Mr Thompson made by his relatives were brushed aside. The responses of medical practitioners who did not have the same opportunity to view the patient as the relatives had were substituted. In addition it is clear that the level of communication between those treating Mr Thompson on the one hand and those of his family who were deeply concerned for the preservation of his life and the protection of his welfare on the other was less than adequate. Even in relation to such matters there are only interim guidelines that have been produced by the New South Wales health authorities. This should also be rectified. Furthermore, even the interim guidelines on management of unconscious patients are not easy to come by. It would seem that the same is true in respect of the guidelines established within RPAH regarding the withholding and withdrawing of life support. The policies and procedures document formulated by RPAH states that it is the policy of the hospital "to involve patients, families … in decisions concerning the patient's care and treatment". The dispute as to extent to which that policy was complied with in the present case points up the need for health care professionals, including doctors and nursing staff, to be made aware of and required to put into effect the relevant policy, and for the relatives of patients to be made aware of the existence and content of the policy document. In this regard it is significant to note that NFR orders are to be "considered in the overall context of withdrawing and withholding treatment" (Policy 8). That tends to give additional credence to the claim by the plaintiff that, in effect, a decision had been made to write Mr Thompson off and to allow death from infection to supervene. Withdrawal of sustenance would not be likely to assist in warding off infection.
115 Events subsequent to the initial hearings clearly establish that the decision to withdraw treatment and nutrition from Mr Thompson was premature; the prognosis that he would soon die, wrong. The change in his medical treatment and support regime consequent upon the intervention of the court helped to ensure that Mr Thompson not only stayed alive, but improved to the extent demonstrated on video recordings exhibited in the proceedings. Furthermore, the diagnosis and prognosis by Emeritus Professor Lance seems to have been accepted by the hospital and a number of the medical practitioners who had been treating Mr Thompson. These factors highlight the wisdom of allowing a sufficient time to pass between the trauma or other event giving rise to the unconscious state of the patient and the making of a diagnosis of permanent (or chronic) vegetative state, which may be, and in the present case was, a prelude to the withdrawal of treatment, support and nutrition.
116 The material before the court reveals that Mr Thompson has been transferred to a nursing home and that in such an environment he has continued to improve with the aid of appropriate rehabilitative treatment. Counsel for the defendant indicated that it was proposed to maintain appropriate medical and other treatment and support and that there was no longer any question of withdrawal of such treatment and support or of nutrition.