Medical law and treatment issues

We advise health providers on a wide range of issues regarding the treatment of patients. Duty of care, informed consent, mental health, withdrawal of care, medicines and treatment of children are all areas on which we regularly advise.

We are often involved in applications to the courts for treatment orders for children or vulnerable adults. Our lawyers understand the nuances of clinical practice and have exceptional experience working with legislation, policy and people in the sector. At Claro we place a premium on establishing systems and practices that will withstand scrutiny and the test of time.

When it comes to medical law:

  • the starting point is always sound systems and policy
  • personal responsibility means knowing what you are responsible for.
We work with the following groups in relation to medical law and treatment issues:

Examples of work done by Claro lawyers

Hunger striker’s refusal of medical treatment while in prison. We acted for a DHB to obtain a declaration from the High Court that it was lawful to respect the inmate’s refusal of medical treatment during a prolonged hunger strike. The prisoner was protesting against what he believed was an injustice he had suffered in a criminal trial. He refused to eat, drink or be given artificial nutrition or hydration, either in prison or in hospital. The Department of Corrections sought an order to give him food and water against his wishes – and wanted this to happen in hospital. The DHB was not prepared to ‘force feed’ the man in the face of his competent refusal. After a High Court hearing lasting a number of days the Court ruled that the man’s wishes must be respected even if that meant he would die. This is now a leading decision on a patient’s right to refuse medical treatment, advance directives, whether refusal of treatment as part of a protest is a ‘suicide’, and the interface between medical ethics and the obligation of the state to protect the health of prisoners.

A contentious application for court orders for placement of a patient in dementia level care. We advised a DHB on an urgent application for personal orders; drafted statements on behalf of DHB staff; and appeared for the DHB at the three day contested hearing. The patient’s partner did not agree that it was in the patient’s best interests to be placed in a dementia care unit and believed that she could care for her partner at her home. She also believed that the medication prescribed for the patient was detrimental to his health, and preferred homeopathic alternatives. The court ordered that the patient be placed in a stage 3 dementia unit and that treatment be provided as determined to be in the patient’s best interests by the health professionals involved in his care. The patient’s daughter was appointed as the patient’s welfare guardian for matters not covered by the orders. We were also involved in advising the DHB on related requests for information under the Official Information Act, and advising the residential care provider on management of the patient following the orders.

Provision of care for a terminally ill person who could no longer communicate. We advised a hospice on a patient whose health was deteriorating to such an extent that she no longer had capacity. We advised on the obligations of the hospice in relation to the patient’s previously stated wishes (i.e. advance directives) with respect to her personal care and welfare, and the role of the patient’s partner, who had been appointed as the patient’s Enduring Power of Attorney for personal care and welfare.

A patient who wished to refuse treatment, knowing that this would result in her death. We advised a DHB on its obligations to the patient who wished to withdraw from treatment following a kidney transplant. The patient was suffering from depression. The question was whether the patient had capacity to make this decision. A full multi-disciplinary team approach was adopted, and a formal assessment of her capacity found that she was competent to make the decision. She was provided with palliative care, and subsequently died a few days later.

A parental decision not to allow reinsertion of a feeding tube for a 7 year old boy knowing failure to do so would hasten death. Our lawyers were involved in urgent weekend proceedings seeking declarations under the High Court’s inherent jurisdiction/orders under the Care of Children Act, advising the DHB/clinicians throughout; facilitating ethics committee procedures, and reports on the child’s best interests. There was potential for criminal liability/professional consequences for the health providers involved. Unavailability of a second guardian added complexity. Our lawyers filed an urgent application, evidence, and submissions, and arranged appointment of counsel for child. Orders were obtained that allowed the parent’s wishes to be followed, with clinicians/DHB confident of no repercussions. We subsequently advised on name suppression and coronial matters.

Consent and disclosure issues relating to a 15 year old patient. The young woman had a significant injury with a limited prospect of recovery. Her parents wished to protect her from the harsh realities of the condition and sought to manage her care, restrict visitors and filter information being provided to her. Hospital staff were uncomfortable with the parents’ approach and unclear about their legal obligations. We advised on obligations to the patient and her parents and strategies for managing the situation going forward.

Review of DHBs’ child protection policies, including participation in multi-agency care and protection groups. Addressing concern about the safety of children raises complex consent and information management questions. We have advised on the legal parameters around child protection processes and decision making. These include consent requirements, interface with CYFS and the Police, child protection alerts and risk to siblings. We have also advised on governance, practice and disclosure issues relating to multi-agency groups.

Treatment for fertility and menstruation issues  We have advised DHBs on the treatment of intellectually disabled adults and young people in relation to the management of fertility and menstruation issues.  We have advised on the legal parameters governing procedures that result in the sterilisation of intellectually disabled people and the legal process that must be undertaken before such a procedure is performed.

Training we offer

We regularly run seminars and workshops on organisations’ duties and obligations in the provision of health and disability services. 

For more information on this course, or to discuss your organisation’s training needs, contact Jonathan Coates or Anita Miller.

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