New South Wales Supreme Court CITATION : Krommydas v Sydney West Area Health Service [2006] NSWSC 901 HEARING DATE(S) : 18 August 2006 JUDGMENT DATE : 18 August 2006 JUDGMENT OF : Sully J at 1 DECISION : Declaration in accordance with para 1, order in accordance with para 2, and declaration in accordance with para 3 of short minutes of order. No order as to costs. LEGISLATION CITED : Human Tissue Act 1983 (NSW) CASES CITED : Mesahi v South-East Area Health Service [2004] NSWLR PARTIES : Dennis Krommydas Sydney West Area Health Service FILE NUMBER(S) : SC 2006/4304 COUNSEL : T. L. Lee (Solicitor) - Plaintiff J. Maconachie QC/J. Emmett - Defendant SOLICITORS : T. L. Lee - Plaintiff Blake Dawson Waldron - Defendant - 5 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION SULLY J 18 August 2006 2006/4304 – DENNIS KROMMYDAS v SYDNEY WEST AREA HEALTH SERVICE JUDGMENT 1 HIS HONOUR: A gentleman named Mr Dennis Krommydas is at present a patient in the intensive care unit at the Westmead Hospital. In connection with his treatment in that unit there is current an injunction made by Mr Justice Windeyer on the 16th of this month. So far as is relevant, the terms of the injunction require that up to and including 21 August 2006, and while ever Mr Krommydas remains in a hospital or other institution within the area and under the control of the Sydney West Area Health Service, the defendant in the proceedings before his Honour, he be provided with necessary and appropriate medical treatment directed towards the preserving of his life and the promoting of his good health and welfare. 2 The Health Service moves by learned senior counsel for an order dissolving the injunction. The Health Service seeks, more particularly, a declaration that Mr Krommydas has died in the sense contemplated by s 33 of the Human Tissue Act 1983 (NSW), and seeks, consequent upon the making of such declaration, orders that the injunction and other orders made on 16 August be vacated; and for certain other ancillary orders which are, in fact, cast in the terms of additional declarations. I am not sure that if the declaration in connection with s 33 were to be made and there we to be appended to it, a consequential order appended to it vacating all of the orders made on 16 August that there would be any need for additional orders. 3 It is not necessary, I think, to canvass in fine detail the present condition of Mr Krommydas. It is on any view a profoundly sad even tragic condition. It is, if I may say so, entirely understandable that the immediate members of his family are concerned to do anything possible to prolong any aspect of his treatment that might offer any possibility, however slight, of any improvement, however slight, to Mr Krommydas's demonstrated present condition. 4 That understandable concern of the members of his immediate family adds its own dimension of sadness to the overall situation with which the Court is called upon to deal, and makes it particularly important that in coming to grips with the issues on the present application, the Court take care not to be inappropriately distracted by feelings of sympathy, entirely proper and logical feelings of sympathy, for the plight of the members of Mr Krommydas's family. They are entitled to express their views as they have done through their solicitor. They are entitled to have those views given every proper and respectful consideration by the Court. But in the end the way in which the present application falls to be considered depends not upon consideration of that kind, but upon cut and dried considerations of law, and cut and dried findings of fact based not upon supposition or hope, but upon concrete evidence. 5 The first point taken in support of the application to dissolve the current orders is that it should be found by the Court that in accordance with s 33 of the Human Tissue Act 1983 (NSW) Mr Krommydas has died. The terms of that section are few and simple and clear. The section provides as follows: "For the purposes of the law of New South Wales a person has died (a) when there has occurred an irreversible cessation of all functions of the patient's brain, or (b) irreversible circulation of blood in the person's body." 6 It is submitted that the evidence before the Court in connection with the present application is, as it was put, "all one way", and that its effect is to establish precisely an irreversible cessation of all functions of Mr Krommydas' brain so as to bring him within the statutory definition of death as set out in s 33 of the Human Tissue Act. 7 A great deal of evidence has been given, part of it on affidavit, but more particularly part of it in sworn evidence tested by cross-examination, of Dr Mudallar who is the Medical Director of the Intensive Care Unit at the Westmead Hospital, and a Clinical Senior Lecturer at the University of Sydney. In his capacity as the Director of the Intensive Care Unit he is in every practical sense the person having the day-to-day supervision and management of Mr Krommydas' case. The situation as Dr Mudallar has canvassed it in his affidavit, and as he has subsequently expanded upon it in his oral evidence, is in the nature of things distressing, and I do not see that any useful purpose is served by canvassing it in the open Court. Suffice it to say that I see no reason not to accept Dr Mudallar's evidence, and I do accept it. 8 Once that position is reached, then it seems to me that what is required to be demonstrated by paragraph (a) of s 33 of the Human Tissue Act is clearly and comprehensively demonstrated by acceptable and credible evidence. That being so, I think the submissions put by learned senior counsel for the present applicant are irresistible: that is to say, that such a finding having been made, there is no residual discretion, or other proper basis, upon which the Court could refuse to make the orders now sought. 9 For the sake of completeness, and out of deference to the arguments that have been put, in particular, by the solicitor appearing for the family members, I would add this. Had I been of the contrary view, I would have approached the remaining issues then outstanding conformably with the analysis of principle made by Justice Howie in his Honour's judgment in the matter of Mesahi v South-East Area Health Service [2004] NSWLR 106. I have regard in particular to what is said by his Honour in the paragraphs numbered 25 through to 28 in his Honour's judgment. I am in complete and respectful agreement with the thrust of the analysis there laid out. An approach based upon that analysis, also, I think, would have required the granting of the present application, simply because that approach, properly applied to the given facts of this case, would not have left available to the Court any proper residual discretions which might have enabled the Court itself to intervene so as to ensure some phased withdrawal of the current regime of ventilation rather than its immediate termination. 10 It follows that the present application is entitled to succeed, and I will come presently to make orders giving effect to that view. I should however add this. As I understand part at least of Dr Mudallar's evidence it is possible within clinically acceptable and other appropriate hospital parameters to give effect in practical terms to what the Court is going to order either by an almost immediate cessation of the current regime of ventilation, or by its phased withdrawal according to a particular method suggested by Dr Mudallar in his evidence: that is to say, the method of a reduction within one hour from the current level of 8 breaths per minute to a level of 4 breaths per minute; followed by a phasing out within the second hour of those 4 breaths per minute so as to reach a situation of no breaths per minute. 11 It will follow from what I have said that it is beyond the scope of the powers of the Court to make any formal order requiring that latter alternative to be adopted. I do not think, however, that it goes beyond what is either permissible, or appropriate in any other sense, for the Court to suggest for the consideration of those charged with the further management of Mr Krommydas' condition that serious consideration, at least, be given to that 2 hour phasing out of the current regime of ventilation, only because that will, as best one can judge from the available evidence, make some contribution, however slight, to alleviating the concerns and distress of the members of Mr Krommydas' family. 12 In so far as such a thing can be done otherwise properly, I think that what is owed to common humanity would justify doing it. I accept that is ultimately a discretion for the medical authorities; but as I said I do not think it inappropriate for the Court to come to the views that I have latterly stated. 13 In this matter I make a declaration in accordance with paragraph 1, an order in accordance with paragraph 2, and a further declaration in accordance with paragraph 3 of the short minutes of order which I have initialled, signed and sealed. Those declarations and that order may be entered forthwith. No order as to costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.