Fay’s story



 The Supreme Court ordered an abortion to end Fay’s pregnancy after her advance care directive was held invalid because of lack of mental capacity

It has been said that all adult patients fall into one of three categories[1]:

1 Those who are competent[2],

2 Those who are incompetent, but who have made an advance care directive which is both valid and relevant to the treatment in question[3]; and

3 Those who are incompetent and who have not made such an advance care directive[4].

The person called “Fay” in the proceedings, Application of a Local Health District; Re a Patient Fay [2016] NSWSC 624 fell into the third of these categories because her advance care directive was not valid.

The facts

Fay was an intellectually disabled woman, 19 years old and 22 weeks pregnant. Fay had been admitted to intensive care and placed on dialysis due to renal impairment. Her condition was deteriorating. Despite medication her blood pressure could not be controlled. Her treating doctors concluded that Fay was at a significant risk of permanent cerebral damage and possibly death if the pregnancy continued. They recommended that her pregnancy be terminated to allow more effective control of her blood pressure.

Fay refused to accept the medical advice and wished to continue with her pregnancy. She signed an advance care directive which allowed intervention in only limited circumstances. In the usual course of events, an advance care direction of that nature is legally effective. So much so that acting contrary to an advance care directive can constitute a criminal offence as well as give rise to civil liability.

The dispute

Fay’s treating doctors wished to intervene immediately rather than wait for the manifestation of any of the events nominated in Fay’s advance care directive. They took the matter to the Guardianship Division of NCAT, and, having lost there, took it to the Supreme Court. The central question for the Court was whether Fay had the mental capacity to reject the recommendation that intervention occur immediately. If not, the advance care directive would be ineffective and in that situation the law would require the provision of treatment to maintain Fay’s life.

The finding of lack of mental capacity

The judge formulated the test for mental incapacity[5] as the inability to comprehend and/or retain information which is material to the relevant decision, in particular the consequences of the decision, or the inability to use and weigh the information as part of the process of making the decision. Applying this test to the facts, the judge was satisfied that Fay did not adequately understand the issues and she was not capable of making an informed decision to refuse the treatment recommended.

The outcome

The question then arose as to whether the Court should allow intervention to abort Fay’s pregnancy. The court did so to preserve Fay’s life.


To understand this outcome it should be recalled that there are two fundamental legal principles which are relevant to any decision about whether treatment and care should be provided to a person: the right to self-determination (which is also called the right of autonomy[6]) and the right to preservation of life (which is also called the principle on the sanctity of life). These principles apply equally to an advance care directive as they do to a contemporaneous decision on care or treatment. The judge applied the second of these principles.

The second fundamental principle has wide application and import[7]. It applies where a person is not competent to make a decision about treatment at the time the decision about treatment is needed, and the person has not made a valid decision in advance about the treatment. Because her advance care directive was invalid, as it was made when she lacked mental capacity to make it, this was Fay’s situation.

Exceptions to second fundamental principle

This second principle is not absolute. There are exceptions which have been expressed as follows:

“[T]he principle of the sanctity of life is not an absolute one. It does not compel a medical practitioner on pain of criminal sanctions to treat a patient, who will die if he does not, contrary to the express wishes of the patient. It does not authorise forcible feeding of prisoners on hunger strike. It does not compel the temporary keeping alive of patients who are terminally ill where to do so would merely prolong their suffering”[8].

This statement suggests that there two exceptions: firstly, where the first principle applies[9] and secondly, where the best interest test applies.

 Application of principles to Isaac Messiha

The second exception, the best interests test, is probably best known from the cases of Anthony Bland in the UK[10] and Terri Schiavo in the US. A home-grown example involved Isaac Messiha. In a case concerning his treatment the NSW Supreme Court stated:

“…on such an application as the present [the Court] is concerned with the best interest of the health and welfare of the patient and it is not bound to give effect to the medical opinion, even where, as here, it is unanimous. However, it seems to me that it would be an unusual case where the Court would act against what is unanimously held by medical experts as an appropriate treatment regime for the patient in order to preserve the life of a terminally ill patient in a deep coma where there is no real prospect of recovery to any significant degree”[11].

The best interest exception did not apply to Fay because acting in her best interests was not contrary to preserving her life.


The moral to Fay’s story is to make an advance care directive when mental capacity is not in doubt. However, as is the case with all important legal documents, the directive must be drafted carefully. It can direct that treatment not be provided but not direct that it be provided. It must be clear, precise and unequivocal. It must be able to be understood by another person, so statements requiring a subjective assessment –such as “when I am unable to enjoy life” – must be avoided. Lastly, it should be revised regularly, and especially where there is a significant change in the maker’s circumstances or the law.

All the Best

Darryl Browne[12]

[1] This summary is taken from the decision of Regina (Burke) v General Medical Council [2005] QB 424 at 43-44.

[2] An example is Brightwater Care Group (Inc) –v- Rossiter [2009] WASC 229.

[3] An example is Hunter and New England Area Health Service v A [2009] NSWSC 761.

[4] An example is Australian Capital Territory v JT [2009] ACTSC105.

[5] The test is formulated as a negative because there is a presumption of capacity and the onus is on the person seeking to rebut the presumption.

[6] As recently as June 2014 it was described in the UK Supreme Court as “fundamental to our humanity and to our respect for our own kind”: R (Nicklinson) –v Minister of Justice [2014] 3 WLR 200; [2014] 3 All ER 843; [2014] UKSC 38, [208] .

[7] For instance, in Osland v Secretary to the Department of Justice (No. 2) [2010] HCA 24, the plurality (French CJ, Gummow and Bell JJ) remarked (in the context of the prerogative of mercy) on the “fundamental importance to the whole community relating to the right to life” at [47]. In R (Nicklinson) –v Minister of Justice [2014] 3 WLR 200; [2014] 3 All ER 843; [2014] UKSC 38 Lord Sumption stated that this principle was “another fundamental moral value, namely the sanctity of life. A reverence for human life for its own sake is probably the most fundamental of all human social values. It is common to all civilised societies, all developed legal systems and all internationally recognised statements of human rights”: [209].

[8] Airedale NHS v Bland [1992] UKHL 5 at [3].

[9] An attempt to apply both the first principle and the second principle may cause conflict. This is resolved by giving primacy to the first principle: if a competent person makes a decision about treatment or care, that decision must be implemented, even if it leads to the person’s death. For NSW, this proposition was clearly stated in Hunter’s case as follows: “It is proper, and not inconsistent with an individual’s right of self-determination, that if there is any real doubt as to the sufficiency of an advance refusal of medical treatment, the court should undertake a careful analysis. But the analysis should start by respecting the proposition that a competent individual’s right to self-determination prevails over the State’s interest in the preservation of life even though the individual’s exercise of that right may result in his or her death. …”. See also Re JS [2014] NSWSC 302, [6].

[10] Airedale NHS v Bland [1992] UKHL 5.

[11] Messiha v South East Health [2004] NSWSC 1061 at [25], relying on the decision of Northridge v Central Sydney Area Health Service [2000] NSWSC1241. His Honour declined to make the orders sought in the family’s application. In Application of Justice Health; re a patient [2011] NSWSC 432 the court stated that it would be a “rare case in which the court would, by mandatory injunction, require a medical practitioner to render to a patient a particular form of medical treatment, which the practitioner genuinely and reasonably thought was not warranted or appropriate in the circumstances”: [7].

[12] Darryl Browne is a Councillor of the Law Society of NSW. The views expressed in this article are his own.

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