The Victorian Supreme Court has confirmed its inherent
jurisdiction to act to protect the life and welfare of an
unconscious person. The Court has the duty and power to protect the
rights of an unconscious person to receive appropriate medical
treatment, sustenance and support, provided that it is in the
person's best interests.
On 11 October 2010, Dragan Slaveski was admitted as an inpatient
at the Austin Hospital in Melbourne, having collapsed suddenly from
a catastrophic brain stem haemorrhage. He was in an irreversible
coma as a result of the stroke, and his breathing was facilitated
by a tube that had been inserted into his trachea. He was
neurologically unresponsive. Mr Slaveski's family was informed
that he had no realistic prospects of survival, and the medical
staff recommended that he be permitted to die with dignity.
On 14 October 2010, Mr Ljupco Slaveski ("Mr Slaveski
Jnr"), appeared before the Victorian Supreme Court without any
motion or affidavit at which time he referred the judge to comments
made by a doctor treating his father that he was going to
"pull the plug" on his father because the family
"did not have a Court order to stop me". Mr Slaveski Jnr
wanted to stop the doctor from doing this. The judge asked Mr
Slaveski Jnr to return with the rest of this family, which he did
together with their lawyer.
On resumption of the hearing, Counsel for the Hospital conveyed
(by telephone) that the intended procedure was to remove the tube
inserted in Mr Slaveski's trachea to facilitate breathing.
Clinical notes provided to the Court referred to Mr Slaveski having
no realistic prospects of survival.
The Decision of the Victorian Supreme Court
After allowing the family time to obtain a second medical
opinion on Mr Slaveski's prospects, the hearing resumed on 22
The Court held that it had inherent jurisdiction to protect the
rights of an unconscious person to receive "ordinary,
reasonable and appropriate as opposed to extraordinary, excessively
burdensome, intrusive or futile medical treatment, sustenance and
support". The Court held that what constitutes appropriate
treatment is a medical matter, but where there is doubt or a
serious dispute about the treatment, the Court has the power to act
to protect the life and welfare of the unconscious person.
After considering evidence from both sides the Court held that
it was unlikely that further medical intervention would be in Mr
Slaveski's best interests.
The four specialist medical practitioners treating Mr Slaveski
at the Austin Hospital expressed their opinion in a joint report to
Mr Slaveski has suffered catastrophic brain stem haemorrhage
resulting in irreversible coma.
He is unable to move, speak, eat or communicate and has no
apparent awareness of his environment and no response to central
His only remaining brain stem function is spontaneous breathing
and reflex coughing.
He currently has a breathing tube in place facilitating
supported ventilation. If the breathing tube is removed he might or
might not be able to maintain an adequate airway.
The prospect of meaningful neurological recovery is
Ongoing support with the breathing tube is, in our opinion, not
in his best interests.
The family's medical expert said that no matter how
intensively Mr Slaveski was treated, the most likely outcome in the
next 6 weeks was death.
The Court was clear to distinguish the best interests of Mr
Slaveski and those of his distraught family, including the
applicants. In exercising its inherent jurisdiction, the Court held
that the best interests of the patient must be paramount.
His Honour was not satisfied that the best interests of Mr
Slaveski were served by the Court continuing to restrain the
Hospital from discharging its legal duties in relation to his
treatment and management.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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The failure of a party to call a witness does not necessarily give rise to an adverse inference being drawn in accordance with Jones v Dunkel (1959) 101 CLR 298. An unfavourable inference is drawn only if evidence otherwise provides a basis on which that unfavourable inference can be drawn.
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