Australia: Insurance and Health Alert: Granting a Patient's Wish To Die - Withdrawal Of Medical Treatment

Last Updated: 14 April 2010
Article by Robert Samut
"I'm Christian Rossiter and I'd like to die. I am a prisoner in my own body. . . I have no fear of death - just pain. - Re Brightwater Care Group (Inc) & Rossiter (14 August 2009)

The Facts

The proceedings were brought by Brightwater Care Group (Inc.), a Perth business providing residential care and rehabilitation for persons with disabilities (Brightwater). Mr Rossiter, 49, was an active bushwalker, rock climber and cyclist before being rendered a quadriplegic in a car accident in 2004. Mr Rossiter was admitted to Brightwater on 4 November 2008. His physical capacity is limited to moving his feet and wriggling one finger. He is only able to talk through a tracheotomy and is totally dependent on Brightwater to provide him with the necessities of life. The nutrition which he receives to survive is provided by a percutaneous endoscopic gastrostomy tube (PEG) inserted into his stomach by way of surgical intervention. Mr Rossiter is not terminally ill or dying. There is no prospect however for any physical improvement.

Mr Rossiter has continually indicated to Brightwater and his specialist, Dr Benstead, that he wishes to die. He directed the staff of Brightwater to discontinue providing nutrition and general hydration through the PEG. His only wish was for the PEG to be maintained to the extent that he required hydration to dissolve painkilling medication. He understands that he will die of starvation if nutrition and hydration are no longer administered through the PEG. The Court accepted that he had full mental capacity to consider medical advice and make a decision based on it.

The Questions Asked Of The Court

Matin CJ observed from the start that:-

"The issue for determination concerned the legal obligations of a medical service provider which has assumed responsibility for the care of a mentally competent patient when that patient no longer wanted to receive medical services which, if discontinued, would inevitably lead to his death."

Brightwater and Mr Rossiter asked the court to make declarations with respect to their respective rights and obligations. Brightwater's concerns included the risk that compliance with Mr Rossiter's directions might result in a criminal prosecution.

Brightwater also sought a declaration on behalf of Dr Benstead who was intending to administer the analgesics for sedation and pain relief as Mr Rossiter approached death.

The Law

The decision is essentially based on a few fundamental common law principles including:-

  • The assumption that a person of full age has the mental capacity to consent to or refuse medical treatment.
  • An individual's right of autonomy or self-determination.
  • The legal duty placed on medical practitioners to inform patients of all aspects and risks associated with a medical procedure.

Considering all of these His Honour said:-

"Mr Rossiter has the right to determine whether or not he will continue to receive the services and treatment provided by Brightwater, and at common law Brightwater would be acting unlawfully by continuing to provide treatment contrary to Mr Rossiter's wishes."

Having considered the position at common law His Honour turned to the Western Australian Criminal Code. He formed the view that the provisions of the Code which affected the delivery of medical treatment and providing the necessities of life could not be read in a way so as to require the provision of medical treatment against the wishes of a mentally competent patient. He concluded that the criminal provisions did not alter the common law principles, and that Mr Rossiter, after being provided with full information relevant to the consequences of any decision that he might make, had the right to determine and direct the extent of the continuing treatment that he receives.

With Dr Benstead, His Honour was more guarded. He saw that Dr Benstead's rights and obligations were no different to those which attended the treatment of any other patient who may be approaching death. In his view no question of a breach of legal obligation arises if the palliative care is administered with the informed consent of the patient and does not have the effect of hastening that patient's death.

Orders Made

  • "If after the defendant has been given advice by an appropriately qualified medical practitioner as to the consequences which would flow from the cessation of the administration of nutrition and hydration, other than hydration associated with the provision of medication, the defendant requests that the plaintiff cease administering such nutrition and hydration, then the plaintiff may not lawfully continue administering nutrition and hydration unless the defendant revokes that direction, and the plaintiff would not be criminally responsible for any consequences to the life or health of the defendant caused by ceasing to administer such nutrition and hydration to him.
  • Any person providing palliative care to Mr Rossiter on the terms specified in section 259(1) of the Criminal Code would not be criminally responsible for providing that care notwithstanding that the occasion for its provision arises from Mr Rossiter's informed decision to discontinue the treatment necessary to sustain his life."


At the commencement of his judgment Chief Justice Martin says that the case is not about euthanasia, which is true, but it certainly doesn't hurt the cause. Euthanasia advocate Philip Nitschke is quoted in the ABC News as saying "It is a very important decision and it's such a victory for common sense." Peter O'Meara, President of the Right To Life Association, sees it as a precursor to the introduction of a Euthanasia Bill in WA.

The decision cannot be automatically applied to similar cases or hypothetical situations. A Court will only grant declaratory relief in respect of the criminality of a proposed procedure or course of conduct in exceptional circumstances. Also, State Criminal Codes differ in the way that they treat medical practitioners and others involved in the withdrawal of medical treatment and palliative care. In Queensland for example section 282A of the Qld Criminal Code provides that nothing in that section authorises, justifies or excuses a palliative care provider aiding another person to kill himself or herself. The language used is very broad.

Consistent State legislation giving doctors some guidance on the difficult issues and questions which arise when treating dying patients or severely disabled patients who have no desire to live, is needed but given the list of higher priorities in health care, such uniform legislation is unlikely to materialise anytime soon. It will become more of a priority as the Baby Boomers (despite their best efforts) enter old age.

For further information on this topic, please contact:

Robert Samut

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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