(1999) 49 NSWLR 231
Re the Estate of Edwards [2011] NSWSC 478
Y v Austin Health [2005] VSC 427
Source
Original judgment source is linked above.
Catchwords
(1999) 49 NSWLR 231
Re the Estate of Edwards [2011] NSWSC 478
Y v Austin Health [2005] VSC 427
Judgment (2 paragraphs)
[1]
Judgment
On 7 July 2015 the Plaintiff made an urgent ex parte application by telephone and email for an order to facilitate the collection of sperm from the Defendant, her husband, who was then lying unconscious in a critical condition at Royal Prince Alfred Hospital Sydney (the "RPAH").
Evidence to support the application was provided in part on affidavit by the Plaintiff's solicitor, on information and belief. Additional information was communicated directly to the Court over the telephone by Mr Chen's treating medical practitioner, Dr Hussein Kadim, a Registrar at RPAH. From that information I found the following facts to be established to the level of proof necessary to permit me to deal with the matter in an endeavour to preserve the position.
Mr Chen was born 19 April 1970. At the date of the application he was married to the Plaintiff and the couple had one child. At approximately 7:30am on Monday, 6 July 2015 Mr Chen presented at RPAH complaining of severe chest pain. The rupture of a major blood vessel was diagnosed. Mr Chen was admitted for emergency surgery. His condition was acute and life-threatening.
He remained conscious until a general anaesthetic was administered for the purposes of the operation. During that time he was able to sign consent for the procedure. The Plaintiff informed her solicitor that "just before he lost consciousness, he said to [her] that he wanted to have one more child with [her]".
Mr Chen came out of surgery at approximately 6:00pm on 6 July 2015. He had not regained consciousness approximately 27 hours later when this application was made (9:00pm on 7 July 2015). Post-operatively Mr Chen was managed in the Intensive Care Unit of RPAH. His condition deteriorated. At the time of the matter being brought before the Court the Registrar responsible for his care considered that he may have only hours to live.
The RPAH Fertility Clinic is a unit within the hospital which is managed in conjunction with Genea Limited. A specialist within the Fertility Clinic, Dr Ying Li, is qualified to extract sperm from an unconscious patient and to store it for insemination at a later date. The Plaintiff requested Dr Li to undertake this procedure on her husband. Dr Li was willing to do so subject to being satisfied that he would have lawful and effective consent.
It appeared unlikely that Mr Chen would recover consciousness to be able to give consent himself. What he had said to the Plaintiff, as quoted at [4], did not amount to consent for such a procedure. The urgency of collecting the sperm, if it was to be done, was considerable. I was informed that posthumous extraction would be possible but with diminished prospects of viability, in direct relationship to the length of delay after death.
The Assisted Reproductive Technology Act 2007 (NSW) is not relevant to the giving of consent to medical practitioners in this situation, nor does it provide any basis for an order to be made by the Court which would permit the extraction of sperm from the unconscious patient. That Act addresses the consent of a person from whom gamete (which includes a human sperm) has been obtained but it deals only with the position of persons who donate pursuant to their own consent. It does not deal with circumstances in which a guardian or the Court may give consent. See for example ss 17 and 19.
The Human Tissue Act 1983 (NSW) also does not appear to have application to the circumstances of this case. It provides in s 7 that a person may consent in writing to the removal from the person's body of "specified regenerative tissue" for the purpose of, inter alia, "transplantation to the body of another living person" or use for "medical purposes or scientific purposes". Section 8 enables a person to give consent for the removal from the person's body of "specified non-regenerative tissue for the purpose of transplantation to the body of another living person".
Section 23 provides that a designated officer for a hospital may, in certain circumstances, authorise the removal of tissue from the body of a person who has died in the hospital or whose body has been brought to the hospital. The circumstances include the provision of written consent by the person during his or her lifetime for the removal of tissue after death for the purpose of "transplantation to the body of a living person" or use for "medical purposes or scientific purposes" (subs (1)). The designated officer may also authorise the removal of tissue if, notwithstanding that the deceased person had not given such consent during the person's lifetime, he or she had not expressed objection to such a course and "a senior available next of kin" has given his or her consent. These provisions were inapplicable to the application made to me on 7 July 2015 because the person from whom it was proposed to remove the tissue remained alive.
Ultimately, the form of relief which appeared to me to be open and which was sought by the Plaintiff's counsel was a declaration that the medical practitioners could lawfully undertake the extraction upon the consent of the Plaintiff as a "person responsible" under the Guardianship Act 1987 (NSW). I was informed that the doctors were unwilling to proceed without sanction of the Court for the Plaintiff's consent.
Part 5 of the Guardianship Act, comprising ss 32-46B, provides for the giving of consent for medical procedures in respect of patients who lack the capacity to give consent themselves. Section 32 provides as follows:
"The objects of this Part are:
(a) to ensure that people are not deprived of necessary medical or dental treatment merely because they lack the capacity to consent to the carrying out of such treatment, and
(b) to ensure that any medical or dental treatment that is carried out on such people is carried out for the purpose of promoting and maintaining their health and wellbeing."
Section 34 provides that the Part applies, inter-alia, to a patient "who is incapable of giving consent to the carrying out of medical or dental treatment". That was the situation of Mr Chen on 7 July 2015. Section 36 provides that consent to the carrying out of medical treatment on a patient to whom Pt 5 applies may be given, in the case of "minor treatment", by "the person responsible for the patient". On the facts as I found them for the purpose of this application the Plaintiff was, on the evening of 7 July 2015, the "person responsible" for Mr Chen. She satisfied the requirements of s 33A(4)(b) of the Guardianship Act.
"Minor treatment" is defined in s 33 as "treatment that is not special treatment, major treatment or treatment in the course of clinical trial". Having reviewed the definitions of those terms I am satisfied that the collection of sperm from Mr Chen would not constitute treatment within the categories of "special", "major" or "in the course of a clinical trial". The question relevant to whether the Plaintiff was able to give consent under the Guardianship Act for the obtaining of sperm from Mr Chen on 7 July 2015 thus came down to whether the procedure was "treatment" within the meaning of that Act. The word is not defined in the Act.
In ordinary English usage "treatment" would commonly refer to "the application of medicines, surgery … etc to a patient to cure a disease or condition": Macquarie Complete Australian Dictionary. However its usage is not always limited to cures for disorders. For example, in the Assisted Reproduction Technology Act "treatment" is used in such a way as to encompass the full range of medical procedures by which attempts may be made to procure pregnancy in a woman other than by sexual intercourse. Whilst being employed in that wider sense, the word "treatment" is not itself statutorily defined in that Act.
In the urgent circumstances in which a decision had to be made I was unable to identify authority which would resolve the critical question of whether the proposed procedure should be regarded as falling within the concept of "medical treatment" for the purposes of the Plaintiff giving consent under s.40(1), Guardianship Act. The Plaintiff's counsel had received instructions only shortly before making the application and they were not in a position to cite all relevant decided cases.
They referred me only to Re the Estate of Edwards [2011] NSWSC 478, in which RA Hulme J concluded at [32] "that removal of sperm could be regarded as 'for medical purposes' where the proposed use is in assisted reproductive treatment". His Honour was there considering the meaning of expression "medical purposes" in s 23(1)(a)(ii) of the Human Tissue Act. His Honour noted that Habersberger J had come to a similar conclusion, when considering "medical purposes" in a Victorian statute worded in similar fashion to the Human Tissue Act: Y v Austin Health [2005] VSC 427; (2005) 13 VR 363 at [39]. Neither of those decisions was of direct assistance in the interpretation of "treatment" in the Guardianship Act, in particular on the question whether the word as used in the Act is wide enough to include extraction of sperm. The terminology in the Acts considered in the cases mentioned above is different and the statutory context is different.
The order made by Simpson J (as her Honour then was), which had led to the proceedings in Re The Estate of Edwards (supra) (see that decision at [13], [14], [26]-[38]), was made in respect of the body of a man already deceased. Y v Austin (supra) was concerned with the same situation as were most of the authorities discussed in that case (at [19], [20], [24]-[30]). Further, there are differences between the statutory regimes in the respective States which would make it difficult to identify any relevant persuasive conclusion of any of the other State Supreme Courts.
I concluded that the proposed procedure did fall within the meaning of "treatment" for the purposes of s 40 and that it was appropriate to declare that the medical practitioners of the RPAH Fertility Clinic could lawfully act upon the consent of the Plaintiff, as the person responsible for Mr Chen, with respect to carrying out the extraction and storage of semen. A declaration was made accordingly and communicated to the medical practitioners concerned.
After further consideration of the Guardianship Act in the course of preparing these reasons, I acknowledge that there are significant indications in ss 32 and 40 of that Act that it may well have been the intention of Parliament to limit the class of "medical treatment" for which a spouse's consent might be given under s 40. Parliament may have intended to confine spousal consent to cases where "treatment" of a curative nature is proposed - "treatment" directed to remedying or alleviating a "condition" suffered by the incapable patient.
Further, I acknowledge that the observations of O'Keefe J in MAW v Western Sydney Area Health Service [2000] NSWSC 358; (1999) 49 NSWLR 231 at [51]-[54] are against the interpretation which I placed upon s 40 and by reference to which I supported the declaration referred to above. I was not aware of his Honour's decision when the Plaintiff's application had to be determined urgently on 7 July 2015.
The proceedings were relisted before me on 14 July 2015 for directions as to their future conduct. In due course the Court may have to decide whether orders should be made by reference to the Assisted Reproductive Technology Act, regarding the use of such sperm as may have been obtained from Mr Chen. By force of s 19 of that Act the RPAH Fertility Clinic would not be able to provide treatment in the nature of insemination of the Plaintiff "except with the consent of the gamete provider and in a manner that is consistent with the gamete provider's consent".
By affidavit of the Plaintiff affirmed 13 July 2015 it now appears that the extraction was carried out shortly after the Court's declaration (referred to at [19]) had been communicated to RPAH. Mr Chen died another 45 minutes later. Mr Chen was a "gamete provider" as the term is defined in s 4 of the Act, albeit that his sperm is not within the definition of "donated gamete" because it was not provided "for use by a person other than…. the gamete provider's spouse". For the purposes of s 19 there is question whether Mr Chen's consent can be established. As at 7 July 2015 this had only been the subject of hearsay evidence of a tangential conversation (refer [4] above). A second affidavit of the Plaintiff, also affirmed 13 July 2015, has expanded upon the terms of her conversation with Mr Chen shortly before he was administered the general anaesthetic on 6 July 2015.
As Mr Chen has since died the RPAH Fertility Clinic would have to be satisfied that he had consented, specifically, "to the use of the gamete after his… death" (s 23(a), Assisted Reproduction Technology Act) before using the sperm. In order to be able to continue to store Mr Chen's sperm, the RPAH Fertility Clinic requires consent of "the gamete provider", which the clinic would have been able to obtain from the Plaintiff before Mr Chen died, in reliance upon the declaration which I made on 7 July 2015. That consent is required to be for storage for a specified period: s 25(2).
The implications of these matters may need to be further considered by the Court. With a view to there being an appropriate contradictor in the further conduct of the proceedings I have now directed, on 14 July 2014, that a copy of the Summons, the affidavits and these reasons be provided to the Attorney-General and to the Director-General of the Department of Health. The Minister for Health has the administration of the Assisted Reproductive Technology Act. The notified officers are to be informed of the next date when the matter will be before the Court so that they may make application to be joined, if so advised.
The directions made today also require that the Proper Officer of the RPAH Fertility Clinic be given formal notice of the proceedings and a copy of these reasons. The Plaintiff's counsel informed the Court on 14 July 2014 that the Plaintiff intended, in any event, to join as a defendant the entity that operates the Clinic.
Lastly, on the return of the Summons before the Court on 14 July 2015 it has been ordered that until further order the Plaintiff is not to seek to use or to deal with the semen of Mr Chen and that she is not to remove it from the control of the RPAH Fertility Clinic. I did not consider it necessary to make any order against the Clinic itself as its handling and disposition of the stored semen is in any event closely controlled by the Assisted Reproductive Technology Act.
[2]
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Decision last updated: 14 July 2015