Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Lane v Northern NSW Local Health District (No 3) [2014] NSWCA 233
• Hearing dates: 28 February 2014
• Decision date: 22 July 2014
• Before: Basten JA at [1]; Meagher JA at [1]; Simpson J at [61]

Decision

(1) Appeal dismissed.

(2) Order the appellants to pay the respondent's costs in this Court.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: TORT - negligence - breach of duty - psychiatric injury caused by death of mother - mother hospitalised and unable to consent to medical treatment - appointed legal guardian (appellants' father) consented to palliative treatment - whether advice to guardian negligent - whether medical treatment to mother was negligent - whether consent to treatment by legal guardian valid; PRACTICE AND PROCEDURE - conduct of trial judge in relation to self-represented litigants - allegation of bias against self-represented litigants - whether trial judge improperly interfered and prevented examination of witnesses
• Legislation Cited: Civil Liability Act 2002 (NSW), s 5O; District Court Act 1973 (NSW), s 127; Guardianship Act 1987 (NSW), ss 6, 35, 36, 37, 40; Pt 5; Guardianship Regulation 2005 (NSW), cll 3, 13; Supreme Court Act 1970 (NSW), s 75A
• Cases Cited: Annetts v Australian Stations Pty Ltd [2002] HCA 35; 211 CLR 317; Gifford v Strang Patrick Stevedoring Pty Ltd [2003] HCA 33; 214 CLR 269
• Category: Principal judgment
• Parties: Deirdre May Lane (First Applicant); Elizabeth Helen Lane (Second Applicant); Northern NSW Local Health District (Respondent)
• Representation: Appellants self-represented; Mr R Sergi (Respondent); Appellants self-represented; Curwoods Legal Services Pty Ltd (Respondent)
• File Number(s): CA 2013/54612

Decision under appeal

• Jurisdiction: 9101
• Date of Decision: 2013-02-15 00:00:00
• Before: Williams DCJ
• File Number(s): DC 2010/99555; DC 2010/99556

Judgment

1 BASTEN and MEAGHER JJA: The appellants, Deirdre Mary Lane and Elizabeth Helen Lane, are sisters. On 10 March 2007 their mother, Helen May Lane (then 76 years of age) had a seizure at home. She was taken by ambulance to the Casino & District Memorial Hospital. On the same day she was transferred to Lismore Base Hospital. She remained there until 22 March 2007. On that day she returned to Casino Hospital where she died on 24 March 2007. The respondent is the entity responsible for both hospitals.

2 In proceedings brought in the District Court, the appellants alleged negligent mistreatment of their mother at Casino and Lismore Hospitals, causing her distress and resulting in her death. They claimed damages for psychiatric injuries said to have resulted from the negligence of the hospitals in treating their mother. On 15 February 2013 the trial judge, Williams DCJ, dismissed the claims of each and ordered them to pay the defendant's costs. An appeal is brought from that judgment and those orders.

3 There is an issue as to whether the appellants can appeal as of right. There is a requirement for each to obtain leave to appeal unless the amount in issue is $100,000 or more: District Court Act 1973 (NSW), s 127(2)(c). The trial judge was of the view that they had not established "any quantifiable resulting damage": at [362]. An affidavit was filed by Ms Elizabeth Lane asserting a claim for damages in excess of $100,000, but based on material which was available to the trial judge. Although a psychiatrist expressed the view that Ms Elizabeth Lane was suffering from a "major depressive disorder, in partial remission" apparently resulting from her mother's death and litigation, there was little to support the view that any such condition was caused by the conduct of the respondent. The better view is that there should have been an application for leave to appeal.

4 On the other hand, now to require such an application would serve no useful purpose. The respondent takes no point as to the need for leave and the matter has been set down for a full hearing as to whether there was any negligence or tortious conduct on the part of the respondent giving rise to injury to the appellants. The matter proceeded on the basis that if leave were required there would be a grant of leave. That position should be formalised by an order to that effect.

5 For the reasons which follow, the appeal brought on behalf of each of the appellants should be dismissed with costs.

Background

6 Although the appellants were represented when the proceedings were commenced, they were no longer represented at the trial, which they ran for themselves. (They were also unrepresented in this Court.) That circumstance, together with the fact that the respondent, in its defence, admitted that it owed each of the appellants a duty of care, resulted in less attention being given to the precise scope of that duty than might otherwise have occurred.

7 The appellants asserted a secondary or derivative claim. That is, although the respondent owed them a duty of care, the content of that duty was referable to a separate duty owed to their mother. In principle, the existence of such a duty need not be doubted. For example, in Annetts v Australian Stations Pty Ltd [2002] HCA 35; 211 CLR 317, Gleeson CJ described the facts of the case at [3]:

"... at one level, the conduct of the respondent was of a kind that commonly forms the basis of tortious liability; it was the alleged failure of an employer to provide an employee with a safe system of work. But there is more to it than that. The employee was a minor. His parents, the applicants, had agreed to permit him to work for the respondent, in a remote part of outback Australia, on the faith of assurances that he would be well cared for. It is alleged that he was not well cared for. He died. The parents suffered psychiatric injury."

8 Like the present case, that was a situation where there was a pre-existing relationship between the parties, prior to the death of the family member, which involved an express or implied undertaking to take reasonable care for the health and well being of the family member. The High Court held that the duty to take reasonable care was not limited to circumstances where psychiatric injury flowed from a "sudden shock" or where the injury to the family member was directly perceived by those suffering psychiatric injury, although in this case at least the latter element was satisfied in any event. (See also Gifford v Strang Patrick Stevedoring Pty Ltd [2003] HCA 33; 214 CLR 269.)

9 Critical to the appellants' success was a finding that the respondent had been negligent in its treatment of their mother. It was not sufficient that they were distressed by her condition whilst in hospital or by the manner of her treatment. The trial judge accepted that each of the appellants suffered a psychiatric condition that was related, at least in part, to the death of their mother. However, he did not accept that there was negligence on the part of the hospitals' staff in the treatment of their mother. Accordingly, it is necessary to consider with more precision the nature of the duty owed by the respondent to their mother.

10 Although not reflected in the pleadings, the appellants' case effectively had two limbs; one was that they suffered because of the negligent treatment of their mother, the other was that the treatment was unlawful because not the subject of a lawful and informed consent. Although legally distinct, these two aspects shared a common factual substratum, namely that the medical treatment, to which consent was sought, and as provided, was negligent.

11 At the time of her admission, Mrs Lane was not able to give consent to treatment. She suffered from dementia which had advanced so far as to compromise her swallowing reflex. She had limited understanding of her condition whilst in hospital. However, her husband, Mr Leo Lane, was both her next of kin and had been appointed by her as her guardian, pursuant to s 6 of the Guardianship Act 1987 (NSW). He was therefore responsible for giving or withholding consent to the treatment administered at the hospitals.

12 The issue for Mrs Lane whilst in hospital was what treatment, if any, should be administered. Staff at the hospitals consulted with the family in that regard. However, at least at times, the family was divided, the appellants taking a different view from their father and brothers. They sought more active intervention and opposed some steps taken by the hospitals. Their father was content with what was described as "palliative care", accepting that Mrs Lane's death was inevitable and that, given her state of disability, steps should not be taken to prolong her life beyond its natural course.

13 Because Mr Lane was her legal guardian, his view prevailed and the hospitals, correctly exercising their legal obligation, followed his instructions. In those circumstances, the primary question was whether they acted with due care in taking the steps to which consent had been given. A secondary issue, which the appellants were allowed to pursue at trial, but which had a much more doubtful legal basis, was a challenge to the validity of the consent given by their father to the course of treatment in the hospitals. It should be accepted that the hospitals owed a duty to the deceased's family to take reasonable care in advising Mr Lane as to his wife's condition, her prognosis and possible treatment and care. The appellants contended that Mr Lane had not been adequately advised and that, as a consequence, his consent to the treatment limited care provided to his wife was "invalid". The underlying premise on which this argument proceeded was that if the consent were invalid, the treatment of Mrs Lane was tortious, with the result that any psychiatric injury suffered by the appellants as a result of witnessing her treatment was compensable.

14 This basis of breach of duty required establishing a relevant causal connection between breach and loss. Thus, if fully informed as to the circumstances, would Mr Lane have given consent to the same treatment, and if the treatment would in any event have been the same, on what basis was the injury suffered by the appellants compensable? That is, if their mother's condition would have been the same and her death would have come at about the same time, the likely conclusion is that they would have suffered the same distress.

15 Ultimately, the legal steps in this analysis need not be pursued because the factual basis has not been made good.

Challenge to refusal to issue subpoena

16 It is convenient to deal first with a challenge to a ruling made at a pre-trial hearing. The appellants sought to challenge the refusal of Justice Blanch CJDC to allow them to subpoena medical records relating to Mr Lane. They sought to establish through his medical records that he was not "in the right state of mind to know what was going on" in making decisions regarding Mrs Lane's treatment.

17 The pleadings did not raise any issue as to Mr Lane's competence to make the relevant decisions, nor that the respondent was negligent in acting on the basis of his consent. In his reasons for setting aside the relevant paragraph in the subpoena, the Chief Judge noted that it was "not suggested there is any mental impairment, rather an emotional impairment at that stage". No error was demonstrated in that determination.

Challenge to validity of consent

18 Part of the challenge to Mr Lane's decisions with respect to his wife's care was to posit alternative advice which might have been given to him, but was not. However, to make such a challenge relevant, it was necessary to demonstrate that such advice should have been given to him. The medical evidence did not support such a claim. In part that may have been because no such claim was pleaded. In any event, the case ultimately rested on the ability of the appellants to demonstrate some form of negligence on the part of the staff at the hospitals, including in relation to the information and advice supplied to Mr Lane.

19 The appellants' expert was a Professor Fred Ehrlich. Although his report contained a list of his qualifications, it was not clear what speciality (if any) was relied upon in the present case: there was no curriculum vitae for him. (Dr Obeid, one of the experts called by the respondent referred to the "reports of Professor Fred Ehrlich (Rehabilitation Specialist)".) In answer to a direct question as to whether the care provided by the respondent was "negligent" Dr Ehrlich replied, in a report dated 16 April 2010 at p 4:

"One might consider three levels of management in a patient such as Mrs Lane.

(a) The most energetic would be active medical treatment, intravenous antibiotic therapy, vigorous chest physiotherapy and a concerted effort to 'cure' existing illnesses.

(b) Another possibility is to merely provide palliative measures such as keeping the patient comfortable, maintaining nutrition and hydration, providing adequate skin care to prevent bed sores, and attending to bowel and bladder function.

(c) The third approach is to 'do nothing' and let the patient die.

In my opinion, Mrs Lane's treatment might be considered to have been most correctly somewhere between (a) and (b) above.

Treatment (c) is euthanasia which, in my opinion, was not indicated in Mrs Lane's case."

20 This opinion in relation to the critical question was not entirely responsive. Dr Ehrlich had earlier stated that he could find "no record in her files of her receiving antibacterial or antibiotic therapy". In fact she did. Two antibiotics, Ceftriaxone and Flagyl, were administered on 10 March 2007: Tcpt, 17/05/12, p 24(15)-(35). Those antibiotics were not continued because of the results of further investigations (blood and urine testing and a chest X-ray): Tcpt, 17/05/12, p 25(30)-26(28). Mrs Lane was also administered a low dose of morphine. Dr Ehrlich described that as "very odd indeed", because there was "no evidence that she had pain". He described morphine as a "well-known respiratory depressant", which is contraindicated in a person who has bronchopneumonia. There was reference to pain and discomfort in the hospital notes. Dr Coupe, the registrar at Lismore Base Hospital who saw Mrs Lane on almost every day that she was in the hospital, said the morphine was initially prescribed for pain, agitation and distress: Tcpt, 21/06/12, p 70(17). Dr Laird, a visiting medical officer who first saw Mrs Lane on 15 March, described the doses of morphine administered on 10, 11 and 12 March as not "at all excessive": Tcpt, 17/05/12, p 17(30).

21 Dr Ehrlich's somewhat vague criticisms were rejected by Dr John Obeid, a consultant physician and geriatrician called by the respondent. His only criticism was that the hospital could have offered physiotherapy and occupational therapy services, although he noted it was possible that the staff elected not to pursue this option due to Mrs Lane's "immobility and evidence of pain": Report, 18 September 2010, par 2.4.6.2. He did not suggest that anything followed from the absence of such services and, in a further report, expressly stated that it did not cause "any material difference to her care or outcome": Report, 12 March 2012, ("second report") par 2.2.1.

22 Dr Obeid noted that Mrs Lane had been seen by a speech pathologist on 15 March who had formed the view that it was "unsafe for any oral intake and recommended nil by mouth": second report, par 3.5.1. He was critical of the appellants' attempts to continue to feed their mother. That speech pathologist, Ms Kostal, was unable to engage Mrs Lane's attention in order to complete a swallowing assessment. Nor did she observe any spontaneous swallowing on that occasion: Tcpt, 17/05/12, p 95(1). That was consistent with Dr Coupe's observations at the same time: Tcpt, 21/06/12, p 65(47). A further assessment by another speech pathologist, Ms Lucks, on 22 March produced the same outcome. Mrs Lane did not make eye contact or respond to any verbal or tactile stimulation to enable a swallowing assessment to be done. Nor did she show any spontaneous swallowing: Tcpt, 18/05/12, p 5(5)-(6).

23 With respect to the comment by Dr Ehrlich relating to morphine, Dr Obeid noted (consistently with Dr Laird's evidence) that the dose was "very small by any standard": second report, par 3.7.1. With respect to the suggestion that there was "no evidence she had pain", he referred to the medical notes on four days which recorded indications of pain. He disagreed that morphine was a respiratory depressant at the doses administered to Mrs Lane: par 3.7.5. Nor did he see any evidence of respiratory depression in the hospital notes.

24 With respect to the suggestion that Mrs Lane was not provided with nutrition, Dr Obeid noted that such a view ignored the fact that she had been assessed as "unsafe to swallow" and that she was administered intravenous fluids and dextrose. He rejected the proposition that her treatment could properly be described as "euthanasia", that being the criminal and deliberate killing of a patient by means of a legal dose of a drug, or the wilful denial of access to appropriate and reasonable medical treatment. He saw no evidence supporting the validity of such a description of the treatment of Mrs Lane: he described the care given to Mrs Lane as "appropriate palliative care": at par 3.10.4.

25 The opinions of Dr Obeid that the treatment of Mrs Lane was appropriate and demonstrated no negligence were supported by Dr John Raftos, an expert in emergency medicine. After setting out in detail the history of Mrs Lane's condition recorded in the hospital notes, Dr Raftos concluded, in a report of 2 September 2011:

"Mrs Lane had progressive vascular dementia which had caused her to become totally dependent on others for all of the activities of daily living. She was incontinent of urine and unable to communicate verbally. When she presented to hospital with decreased level of consciousness, doctors, after performing appropriate investigations, reasonably and appropriately advised her family that she was at the end of her life and that comfort measures only were indicated."

26 Drs Obeid and Raftos were unshaken in their opinions, in giving oral evidence.

27 By contrast, Dr Ehrlich was hesitant in his critique when cross-examined. When it was pointed out that Mrs Lane had received antibiotics on two occasions, he agreed that he had "missed one dose" and that he was not familiar with another drug (in fact an antibiotic) which was administered to her: Tcpt, 20/06/12, p 47. When it was further put to him that a microbiology report indicated no continuing infection, explaining why the antibiotics had been discontinued, he replied (p 48(45)):

"No, no you can't conclude that. That maybe the case but the fact that there's no growth can be due to many, many things, the sample was not kept the right way, was not plated out the right way. You very often get no growth where there should be growth, but you're right, it could be that she had no urinary infection, yes."

28 Dr Ehrlich was asked (p 49(41)):

"Q. Do you say that it is more likely than not that she could have returned to her premorbid state?

A. Well, it's not right for me to speculate about that. I don't know how long she was hypoxic. I don't think if she was hypoxic. I don't know how bad she was at the time. I don't know how long it took for her to get better. It may have done permanent damage, it may not have.

Q. Is it fair to say it's just not possible to know?

A. Well, not for me to know, no."

29 When further asked about his belief that she was "not terminal" he replied (Tcpt, p 50(30)):

"At the time - her final illness was diagnosed to be pneumonia. She wasn't - from what I can see she wasn't treated for pneumonia. Presumably because the clinicians made a decision that it is not worth treating her. That there can be no useful outcome, hence no treatment, that's fair enough. If that's what they thought, that's what they should do."

30 At p 56(45) the following exchange occurred:

"Q. Well isn't that one of the reasons why you offered the treatment was not correct, there was no investigation of these things?

A. Well there in fact was no treatment. From what I can see this lady was very ill. There was no active treatment. Obviously the decision was that we let this person die, and that was done. Now was it the right thing to do, well if anybody if everybody is satisfied that there was absolutely no prospect of any useful future then it was in our treatment [sic]. But I did not really get the feeling that all these options had been adequately covered. But you know I can be wrong.

...

Q. But you're not suggesting that, are you, that Mrs Lane was likely to make a recovery are you?

A. I don't know is the answer.

...

A. ... so it depends really on how the clinician sees the situation. If they really thought that there is no hope for this lady then I suppose they could have done nothing else. Yes, that's right.

31 The trial judge, after an exhaustive analysis of the evidence, came to the following conclusions:

"[333] Mr Lane's view of how his wife was treated is valuable, the test must be an objective one in accordance with widely accepted professional practice. However I do not think that Mr Lane's view of how Helen was treated is misplaced in any way. The legal and undisputed fact is that he was Mrs Lane's next of kin and her legal guardian at all relevant times. That doesn't mean that if he accepted a course of conduct on the part of the hospital, that conduct escapes supervision. There are two bases to do so. The first is whether the conduct was necessary and appropriate. The second is whether it was properly explained to Mr Lane in terms he could understand. ... The treatment risks or outcomes relevant to Mrs Lane were, I am satisfied, adequately explained to Mr Lane and others in the family and that he understood those explanations despite the no doubt emotional experience he was undergoing.

...

[335] However the plaintiffs have been unable to establish that even if all the things they say should not have been done were done and if all the things they say should have been done were not done, it was more likely than not that Mrs Lane's outcome would have been meaningfully different in the short term, that is that Mrs Lane wouldn't have died at or about the time she did in fact die."

32 Those conclusions were fully justified on the evidence. Indeed, and possibly more importantly, apart from the ambivalent and imprecise opinions of Dr Ehrlich, the evidence that the steps taken in the hospital were both reasonable and appropriate in the circumstances was overwhelming. Most of the doctors who treated or were responsible for Mrs Lane's treatment at Lismore Hospital gave evidence. They were Dr Seneviratne, a resident medical officer, Dr Burrell, a staff specialist who went on leave on 14 March, Dr Coupe and Dr Laird. Each was questioned at length by both appellants.

33 Dr Seneviratne saw Mrs Lane shortly after her admission. He described her clinical condition as "very bad": Tcpt, 16/05/12, p 31(24). Without the oxygen that was being supplied to her at that time she most probably would have died: Tcpt, 16/05/12, p 29(32). Dr Burrell considered Mrs Lane to be "in a palliative situation from the time" he first saw her on 12 March: Tcpt, 18/05/12, p 24(45). By 14 March, the day Dr Burrell went on leave, he thought Mrs Lane's condition was such that she was going to die: Tcpt, 18/05/12, p 28-29. Dr Coupe described his assessment of Mrs Lane when first admitted as a "gravely ill woman with no reversible causes": Tcpt, 21/06/12, p 60(46). He saw her every day and whilst there were very subtle changes in her condition "unfortunately nothing of any meaningful improvement". He said that if she had improved "we would have changed everything": Tcpt, 21/06/12, p 67(3). Dr Laird, who first saw Mrs Lane on 15 March, considered that in the way she presented it was "[a]bsolutely likely" that she was going to die: Tcpt, 17/05/12, p 31(45). He agreed that her prognosis was poor and that it was not appropriate to be "aggressive in her care": Tcpt, 17/05/12, p 15(26). The evidence of all of these clinicians who treated Mrs Lane at Lismore Hospital was that she was at the end of her life. That being their considered assessment, Dr Ehrlich agreed that "they could have done nothing else" than provide palliative measures to keep her comfortable.

Breach of Guardianship Act and guidelines

34 It was not in doubt that Mr Leo Lane was the properly appointed enduring guardian of his wife, pursuant to an instrument of appointment under s 6 of the Guardianship Act executed on 6 June 2005. Further, it is clear that when the deceased was admitted to hospital in March 2007 she lacked the capacity to consent to the carrying out of medical treatment. That lack of capacity engaged the provisions of Pt 5 of the Guardianship Act. Absent consent given in accordance with Pt 5, and excluding treatment carried out under the authority of that Part, the medical staff would have been in breach of s 35. Pursuant to s 37, treatment necessary to save a patient's life or prevent serious damage to the patient's health can be carried out without consent, where necessary as a matter of emergency. That was not this case. Where consent was required, it was to be given by the "person responsible" for the patient: s 36(1). Section 40 provides that a person "may request a person responsible for a patient ... for that person's consent to the carrying out of medical ... treatment on the patient": s 40(1). There is then a list of matters which must be specified in the request: s 40(2). There is power for the regulations to provide for the manner and form in which requests shall be made and consents given: s 40(4).

35 In the course of oral submissions, the appellants complained that there had been no request in writing made to Mr Lane and no written consent had been forthcoming. The relevance of this complaint was not fully explored. It did not form part of the particulars of negligence in the statement of claim.

36 In March 2007, the requirements for requests and consents were to be found in the Guardianship Regulation 2005 (NSW). The requirements for a request turned on the distinction between minor and major medical treatment. In the case of both, the primary requirement was that consent should be sought in writing, but a request could be made orally if, in the case of minor medical treatment, it was not practicable to make the request in writing or the person whose consent was sought did not require it to be in writing. In the case of major medical treatment, impracticability was limited to the need to provide treatment quickly and confirmation in writing was required. There were similar provisions with respect to consents in cl 13. It was suggested that the administration of low doses of morphine could have fallen within this category on the basis that morphine was a "drug of addiction" as defined in cl 3(1). Whether or not that was so was not established. The matter need not be pursued because it was apparent from the submissions that the failure to obtain consent in writing was not a significant element in the appellants' case and, for the reasons noted above, could not have been. There was no evidence that the absence of a written consent, based on a written request, affected the appellants.

37 Rather, weight was placed on the matter which was addressed at trial, namely an alleged failure to comply with a document promulgated by the Department of Health (NSW) known as the "End-of-Life Care and Decision-Making - Guidelines", the relevant version being published in March 2005. The guidelines provide useful instruction in relation to the importance of communication between health professionals, patients and families, advice as to how to cope with particular difficulties, such as resolving disputes within families and governing principles (such as non-discriminatory care) to be adopted in reaching a decision as to the best course of treatment. The guidelines are, in a sense, largely procedural. For example, they recommend "[t]horough documentation of decision-making processes and subsequent care" to provide "greater transparency and accountability in the care provided" in order to show that "all health professionals fulfil their professional and legal obligations": par 5.5. Part 7 of the document addresses certain specific issues, including the distinction between euthanasia and assisted suicide (which are unlawful) and lawful "treatment limitation decisions"; the appropriate use of analgesia and sedation, even if the administration of a drug may hasten death; the appropriate use of artificial hydration and nutrition, and the appropriate withdrawal of forms of resuscitation.

38 The appellants sought to rely upon the guidelines as providing a standard, breach of which would demonstrate a breach of the legal duty of care. However, in most cases where it is alleged that the duty of care involved inappropriate treatment or failure to provide appropriate treatment, specific to the needs of a particular patient, the relevant standard will not be found in such guidelines, but in evidence from relevant health care professionals identifying "competent professional practice" for the purposes of s 5O of the Civil Liability Act 2002 (NSW). As discussed above, there was medical evidence directed to the appropriate treatment of the deceased, which supported the conclusions reached by the trial judge that there had been no breach of the duty of care.

Absence of consent

39 Bound in with the submissions of the appellants in relation to the Guardianship Act and the guidelines was an allegation that Mr Lane, as the duly appointed guardian, did not in fact consent to the treatment which was provided until it was, in effect, too late to revive Mrs Lane.

40 The submissions in this respect were not entirely consistent, as between the appellants. One suggestion was that Mr Lane did not give consent to "palliative treatment" involving the administration of morphine, "without being monitored for adverse effects": CA Tcpt, 28/02/14, p 13(27). At another stage it was submitted that his consent was to the hospital doing "whatever they can to help [the patient] improve": p 13(37). In his written statement, Mr Lane described briefly the background to his wife's collapse at home, her admission to hospital and his understanding that she could not be fed because there was a serious risk that she might choke and the food go into her lungs: statement, par 13.

41 There was little support in the evidence for the allegation of non-consent. The social worker's notes for 12 March recorded "family now in agreement re comfort care." However, the following day the hospital notes recorded an awareness that there were "AVO issues", referring to the fact that one sister had obtained an apprehended violence order against the other. The social worker returned, and on 14 March reported that Elizabeth Lane was concerned that the morphine was affecting her mother's respirations and "both daughters wanting to take pt [patient] home - feel she has not been adequately assessed and that the morphine was interfering with assessment". The note continued:

"Pt's husband & brothers have agreed to no morphine but feel the daughters are preventing their mother from having a comfortable and peaceful death. They do not wish pt to be taken home by the daughters."

42 On 14 March a medical note reported that the patient was comfortable and did not appear to be in pain. It continued, "the plan for this evening/overnight is that Mr Lane will make clear to the staff before he leaves what he wishes in regard to his wife's care. This is to be documented & followed even if his daughters try to countermand his wishes."

43 The assessment by the speech pathologist recommending nothing by mouth because of very high risk of aspiration occurred on 15 March. It is clear from the continuing records that the staff at the hospital were attempting to give the best care possible, in accordance with professional standards, in the face of disagreements within the family as to what should be done. On 16 March, there was discussion with the family as to whence the patient should be removed in order to obtain palliative care services. On 19 March there is a long note of a family conference with respect to a transfer to a palliative care service. Ongoing disagreements within the family were noted.

44 On 21 March the patient was transferred from Lismore to Casino Hospital for palliative care. A review by a speech pathologist on 22 March confirmed the earlier assessment. A note by nursing staff on 23 March recorded "long discussion" with medical staff and family, noting that Mr Lane had an enduring guardianship and therefore the final say in all medical matters. The steps recorded were said to be by agreement of the family.

45 So far as the submissions went, the high point of the appellants' case that Mr Lane did not give a consent to the treatment provided was in the following passages during the course of Ms E Lane's questioning of her father (Tcpt, 11/05/12, p 58(18)-(41)):

"Q. Did you understand she was still receiving nourishment through the intravenous drip?

A. Yes, I understand that that was fluids she was getting, yes, but certainly not solids.

Q. Do you understand what fluids she was receiving, what it means by 'fluids'?

A. Well, no-one explained exactly what it was but it was necessary she was getting the necessary fluids.

Q. Was that your instruction that she was getting the necessary fluids?

A. Well, the instructions were that she receive necessary care if any instructions were needed. It wasn't for me to say what, you know, what method was used. If she couldn't have nourishment by mouth then obviously it's up to the medical staff to provide nourishment which was through the drip.

Q. Do you understand what type of nourishment she was getting through the drip?

A. I don't see how that's really important. I mean, she was getting necessary nourishment.

Q. So the question, do you understand what she was getting?

A. I don't know exactly what she was getting, except that she was getting what was prescribed."

46 In a second passage at p 61(12) the questions and answers continued:

"Q. If you knew about possible side effects of morphine would you have shown more interest and asked more questions?

A. I don't think that's relevant. I had already given permission. I suppose the mere fact that Helen was admitted to the care of the staff they would have used what they considered appropriate in the situation and I believe that under those situations morphine was a satisfactory treatment.

Q. Are you saying that she left the decisions up to the medical staff to decide what treatment that the patient, Mrs Lane, should have received?

A. That's normal procedure, I understand, your Honour. If somebody is in the care of the hospital staff then the decisions they make are appropriate."

47 Three things became apparent in the course of the hearing of the appeal. First, and most significantly, a reading of the hospital notes, both at Lismore and Casino, established two matters: first, that the staff of the hospitals appear to have taken extraordinary steps to explain how they believed their patient should be treated and to obtain consent from the family by way consensus. The second matter was that although both family and staff realised that Mr Lane had the final say in such matters, he too appears to have gone to great lengths to act on the basis of consensus rather than authority. Those inferences are inconsistent with a case based on a breach of any duty of care either to the patient or to her family members.

48 Secondly, at no stage did the appellants obtain any concession from their father that he did not consent to the treatment given or that in giving consent he did not have the information he required to make the appropriate assessment. All that was established was that the appellants had different views to those of Mr Lane in relation to the condition of their mother. There was an associated claim (addressed below) that Mr Lane should have been recalled, but that does not assist the appellants.

49 Thirdly, it is necessary to say something about the manner in which the trial was run, without intending criticism of the trial judge. Mr Lane was called by the appellants. He was not led in a traditional way through relevant evidence. He was required to recount matters of family history, much of which was of no relevance to the issues raised in the statement of claim. He was, in effect, subject to a hostile cross-examination, albeit ineffective. His evidence "in chief" led from him by each of the appellants extended over some 100 pages of transcript. Cross-examination covered approximately one page and there was then "further examination" by the appellants over an additional 10 pages. The questioning by the appellants was repetitive and argumentative, as well as covering much irrelevant material. It is not necessary to consider why the appellants were granted such indulgences: however, the circumstances are relevant because the appellants complained in their amended notice of appeal that they were not allowed "sufficient questioning of witnesses they were entitled to question" and complained specifically of the failure of the trial judge to require Mr Lane to return for further questioning. The appellants complained that their cross-examination of their father, Mr Leo Lane, was not allowed to continue beyond the end of the day. However, he was their witness. The nature of the challenge to the validity of his consent, as explained above, was misconceived. The lines of questioning attempted by the appellants did not assist their case and the trial judge was entirely within his rights in seeking to keep the proceedings on track in terminating the questioning. No indication was given to this Court as to any relevant questions which might have been asked at that time, but were not. A fair reading of the transcript indicates that the appellants were given great latitude in their questioning of Mr Lane.

50 Although Mr Lane demonstrated great patience and willingness to answer his daughters' questions, the proceedings against the respondent were not an appropriate forum for the attempted resolution of such family disagreements. The primary purpose of the proceedings being to resolve the claims made by the appellants against the respondent, the trial judge was required to impose appropriate constraints on litigants in person in order to protect the interests of the respondent (and thus the imposition on the public health system) and the interests of other litigants before the courts. There was no error demonstrated in the course he took, which erred on the side of indulgence of the appellants. There was an allegation of bias on the part of the trial judge, which was utterly without justification.

51 The foregoing discussion of the matters raised by the appellants has been set out in some detail, not because there was any substance in the submissions (there was not) but to explain, relevantly to a later consideration, why the trial was manifestly disorderly, but solely in an attempt to satisfy the appellants' perceived self-interests.

Procedural complaints - trial

52 The appellants raised a number of complaints about the procedures adopted at the trial. First, it was suggested that Mr Lane should have been recalled to qualify his evidence on the basis of a conversation recounted by Ms E Lane in the course of a lengthy statement which was taken as her evidence-in-chief. She was allowed to say in the witness box what her father had told her after he had completed his evidence, in a conversation out of court, but during the trial. The trial had not been heard continuously: Mr Lane gave evidence (in the appellants' case) on 11 May 2012; Ms E Lane gave evidence on 19 June 2012, referring to a telephone conversation and a meeting on 9 June. If in the discussion out of court Mr Lane expressed views inconsistent with the evidence he had given in court, there was an opportunity for the appellants to seek to have him recalled. That possibility was apparently considered at the time, because, in the course of her evidence, Ms E Lane said, "I asked him if he would make another statement, he said no": Tcpt, 19/06/12, p 39(33). In her submissions in this Court, Ms E Lane stated (CA Tcpt, 28/02/14, p 53(35):

"I didn't give evidence about every single word he said to me, just the fact that he had come to me with a different understanding and was telling me different things to what he expressed in court."

53 Mr Lane was called in the appellants' case. What precisely he said to his daughter out of court during the trial proceedings is by no means clear. In part it seems to have related to his understanding of the actual cause of death. It may have extended to his beliefs as to the severity of his wife's condition when admitted to hospital. It is not possible to infer that the evidence would have materially affected the validity of the consent which he gave as guardian. To the extent that it constituted "further evidence" for the purposes of s 75A(8) of the Supreme Court Act 1970 (NSW) the appellants demonstrated nothing which would amount to "special grounds", without which such evidence could not be admitted in this Court.

54 Secondly, the appellants complained that they had been prevented by the trial judge from re-examining Dr Coupe. This complaint was misconceived. Dr Coupe was made available by the respondent and cross-examined by the appellants. The cross-examination extended from p 46 to p 133 of the transcript for that day. Dr Coupe was re-examined by counsel for the respondent. Ms E Lane then sought to ask "just four questions", an application which was rejected. That rejection was understandable: it appears to have occurred at the end of the day; the cross-examination had been lengthy and rambling; there had been every opportunity to identify and ask pertinent questions; the four further questions were not identified to the trial judge, nor were they identified to this Court. The closest that the appellants came in that regard was to suggest that the doctors treating Mrs Lane were inexperienced. That could not properly have been established by questioning Dr Coupe (except in respect of his own expertise) and in any event the expert evidence, which was critical to identifying professional error, did not do so. There was no procedural error in refusing to allow further questioning of Dr Coupe.

55 Thirdly, there was a complaint about the rejection of a question put to Dr Laird. It will be recalled that Dr Laird was a visiting medical officer involved in the treatment of Mrs Lane. He gave evidence of his understanding that when Mrs Lane was admitted "she had [had] a seizure at home, that she had [had] a respiratory arrest, that family performed some resuscitation and [she] was then taken to Casino Hospital": Tcpt, 17/05/12, p 73(18). He was asked if he knew how long she had been in respiratory arrest and said that he did not know. He was then asked how long a person can be in respiratory arrest before a problem arises and gave a general answer that "the longer it goes, the more likely there will be some harm occurring": p 73(28).

56 The trial judge interrupted the cross-examination by Ms E Lane and asked what the relevance of the questioning was; he was told that it went to an issue as to whether Mrs Lane had hypoxic brain injury when admitted to Casino Hospital. She was invited to ask the doctor a direct question about that: p 74(14). She then asked, "Is it accepted that if a person stops breathing and it's less than four minutes, that it's most likely that they won't have a hypoxic brain injury?" The question was rejected. Because the seizure had occurred at home, the trial judge suggested it was ridiculous to inquire how the hospital could have determined exactly how long she was in respiratory arrest. In a context where the doctor had already said, "If we're talking one or two minutes less harm, if we're talking five or more, more harm" (at p 73(33)), it was clear that the question was not going to achieve any helpful outcome and, as Dr Laird said in answer to a question from the trial judge, he did not believe there was a test which could have determined whether she had suffered an hypoxic brain injury, but accepted that an MRI scan might possibly answer the question.

57 The rejected question had not been the subject of expert evidence and it is by no means clear that it had not been answered so far as Dr Laird was able to answer it: the rejection of the question did not involve a procedural error.

58 The other challenges made by the appellants were either consequential or misconceived.

Conclusions

59 A number of other subsidiary complaints were made about the conduct of the trial. Not only was there a failure to demonstrate error, but it was not established that, even had there been error, it would have had any material effect on the outcome.

60 The appeal must be dismissed; the appellants must pay the respondent's costs in this Court.

61 SIMPSON J: I agree with Basten and Meagher JJA.

**********

Decision last updated: 22 July 2014