District Court New South Wales Medium Neutral Citation: D Lane v Northern NSW Local Health District; E Lane v Northern NSW Local Health District [2013] NSWDC 12 Hearing dates: 11, 14, 15, 16, 17, 18 May, 19, 20, 21, 22 June 2012 Decision date: 15 February 2013 Jurisdiction: Civil Before: Williams DCJ Decision: Verdict for the defendant. Plaintiffs to pay defendant's costs. Catchwords: Professional negligence - medical negligence - psychiatric injury caused by death of parent - peer professional conduct - Civil Liability Act - end of life considerations. Legislation Cited: Civil Liability Act ss5O, 30, 31, 32. Cases Cited: Aon Risk Services v.ANU [2009] HCA 27 Wyong Shire Council v Shirt [1980] HCA 12 Northbridge v Central Sydney Area Health Service [2000] NSWSC 1241 Messiha v South East Health [2004] NSWSC 1061 Airedale NHS Trust v Bland [1993] AC 789 Rogers v Whitaker [1992] 175 CLR 479 Texts Cited: Gould Medical Dictionary 4th Ed Category: Principal judgment Parties: Deirdre Mary LANE Elizabeth Helen LANE Representation: Counsel: P:- Self represented D:- Mr Richard J A Sergi Solicitors: Self represented Curwoods Legal Services Pty Ltd File Number(s): 66/10 & 67/10 Publication restriction: Nil Judgment 1Where do family relationships go so wrong as to be the cause of so much damage and cost to themselves and to the wider community? This is a case study of such a problem and a problem that is becoming increasingly prevalent in our legal system, involving the commencement and continuation of litigation that should really not have been allowed to go on as long as it has. This judgment, in the matters of D Lane & E Lane v. The Northern NSW Local Health District, formerly known as the North Coast Area Health Service will, I have no doubt, not set at rest the various reasons that have led to the actions being instigated in the first place. 2There are two separate actions in negligence before me. The first plaintiff is Deirdre Mary Lane and the second is Elizabeth Helen Lane. By consent the maters have been heard together. Both actions have been pleaded in exactly the same way. At the time of the hearing of this matter both plaintiff's were self-represented. Both gave evidence. 3Without intending any disrespect, during the course of this judgment I will refer to the first plaintiff as Deirdre and to the second plaintiff as Elizabeth. These proceedings are proceedings in negligence against the defendant claiming psychiatric injury as a result of their mother's death which they allege was caused by her negligent treatment whilst a patient in the Casino District Memorial Hospital (CDMH) and the Lismore Base Hospital (LBH). 4Other persons who either gave evidence or might be mentioned during the course of this judgment are:- Dr Laird who was a visiting medical officer at the Lismore Base Hospital gave evidence; Dr Burrell who was a treating doctor at the Lismore Base Hospital gave evidence; Dr Coupe who was the medical registrar at Lismore Base Hospital gave evidence; Dr Seneviratne, a treating doctor at the Lismore Base Hospital gave evidence; Ms Kostal a speech pathologist at Lismore Base Hospital gave evidence; Ms Wiebke Lucks a speech pathologist at Casino Hospital gave evidence; Ms Jill Rhodes a social worker at the Lismore Base Hospital gave evidence; Dr Jurian Beek, the family general practitioner from Casino gave evidence; Mr Leo Lane, the plaintiff's father, who I will refer to as Mr Lane gave evidence; Mrs Helen Lane, the plaintiff's deceased mother who I will refer to as Mrs Lane or Helen; Dr Knox, a general practitioner who treated Mrs Lane; Dr Boyce a specialist treating neurologist; Dr Fairfull-Smith, a specialist treating geriatrician; Robin Gordon, a neuropsychologist; the Aged Care Assessment Team (ACAT); Dr Pearson, the medico legal psychiatrist for the plaintiff's and Dr Petroff, a medico legal psychiatrist who saw both plaintiff's for the defendant gave evidence; Professor Ehrlich, a medico legal expert for the plaintiffs gave evidence; Dr Obeid a geriatrician medico legal expert for the defendant gave evidence; and Dr Raftos, an emergency medicine specialist for the defendant gave evidence. Additionally both Mrs Lane, Deirdre and Elizabeth consulted a number other medical practitioners and health care professionals at different times and they will be referred to as and when they appear. 5This unfortunate case has its genesis in an event that occurred to Mrs Lane on the 10 March 2007 after which she was taken by ambulance to Casino Hospital and then transferred to Lismore Base Hospital for further treatment where she remained for some 12 days. She was then returned to Casino Hospital where she died on 24 March 2007. 6The plaintiff's claim was filed 1 day before the limitation period expired. The statements of claim had been drafted by their then solicitors, who have since ceased to act. The matter has had a somewhat chequered history having been set down for trial on a number of occasions and then adjourned. The proceedings were commenced in the Newcastle registry of the District Court then transferred to Lismore. The proceedings were listed for trial at the sittings commencing on the 24 October 2011 but the plaintiffs were not ready to proceed and it was re-listed for trial at the next sittings on the 20 February 2012. The matters were again not ready to proceed at those sittings and were further adjourned to the sittings on 7 May 2012 before me. 7Deirdre and Elizabeth made an application to further adjourn the matter on the 7 May, as they were still not ready. Having regard to the listing history to date, the High Courts decision in Aon Risk Services v. ANU and because I felt that no matter how much time the plaintiffs had to prepare the matter there would always be some reason to delay the proceedings, particularly having regard to the way in which the claim was framed, I refused the application and directed that the matter proceed. It was also in everybody's interest that their recollections of events not be delayed any further given the relevant events occurred five years before. 8The proceedings commenced on Friday 11 May at the Lismore District Court by the calling of Deirdre and Elizabeth's father Mr Leo Lane. His evidence took all day. On Monday 14 May Deirdre gave evidence and was cross-examined over that day and the next. On Wednesday 16 May Dr Seneviratne was called and Dr Petroff gave evidence via a telephone link. On Thursday 17 May, Dr Laird gave evidence as did Ms Kostal. On Friday 18 May, Ms Lucks gave evidence as did Dr Burrell and Ms Rhodes. The matter was to proceed the following week in Lismore but for various reasons it could not and it was consequently adjourned to the 19 June in Sydney. On that day Elizabeth gave evidence and was cross-examined. On Wednesday 20, Dr Pearson gave evidence via a telephone link up and Professor Ehrlich gave oral evidence. On Thursday 21 June, Dr Beek gave evidence by telephone link up and Dr Coupe gave oral evidence and on Friday 22 June, Dr Obeid and Dr Raftos gave evidence. The matter was adjourned to allow the plaintiffs to submit for tender additional documents and for written submissions. Additional documents were received from both plaintiffs. Some were rejected and some admitted. The defendant was to provide written submissions first, then the plaintiffs, with the opportunity of a reply by the defendant. The time-table set on 22 June inevitably came undone and consequently it was not until 10 December 2012 that all submissions were completed. 9In all, the plaintiffs submissions were 144 pages long, the defendants some 53 pages. A flavour of the plaintiffs submissions can be obtained from their "Introduction" par 10 where, amongst other things they suggest the medical staff "allowed, in reality forced,(Mrs Lane) to die". At par 32 it is alleged that the defendant was recklessly indifferent to Mrs Lane's life "having the intent to cause her death. Under the Crimes Act 1900 18(1)(a), this is murder." At TP 90 on 17 May, the accusation was made to Dr Laird while giving evidence that "He killed my mother." 10I should say at the very outset that I totally and un-reservedly reject each and every one of those propositions. Whilst the outburst on 17 May is understandable given the obvious emotional state of the plaintiffs at the time of the cross examination of Dr Laird, the statements contained within their introduction are without any merit or any evidence and would not have been made had they been legally represented. 11I propose to deal with this matter by examining Mrs Lane's medical history chronologically in order to give a proper understanding of her pre-morbid health leading up to the event that placed her firstly in Casino and then Lismore Hospital and finally back at Casino. 12There is no doubt and its not disputed, that the hospitals had a duty of care towards Mrs Lane and toward any one who may have been affected by their treatment of Mrs Lane while she was in their care. Whilst the statement of claim does not link the alleged negligence of the hospitals to any damage sustained by the plaintiff's, there is no lack of understanding on the part of the defendant as to what the plaintiffs' claim is. They each say that they have sustained psychiatric injury occasioned by the hospitals negligent treatment of their mother causing, among other things, a loss of earning capacity and a diminution of their amenity and enjoyment of life. 13I propose first to deal with the issue of liability and then move on to the question of damages. The question of damages is as complicated as is the background to the issue in regard to liability. Deirdre and Elizabeth are but two of seven children of Mr and Mrs Lane. It is quite clear on the material before me, that prior to and subsequent to Mrs Lane's death, there was substantial friction within the family in regard to Mrs Lane's pre-morbid care and in regard to her treatment in hospital before her death. 14A large amount of material has been tendered by the plaintiffs in this case much of which, I regret to say, is quite irrelevant to the issue that confronts the court. The plaintiffs made submissions to the commission of enquiry conducted by Peter Garling SC (now Justice Garling of the Supreme Court of NSW). In the course of those submissions they expressed their concerns at the treatment that their mother had received whilst a patient at the two hospitals in question. They also approached the State Coroners office in regard to the death certificate that had been issued in regard to their mother and have tendered correspondence in regard to that application, which resulted in a somewhat different death certificate being issued by the relevant medical practitioner. In fact Deirdre's evidence in chief before me was given by way of reading the submission she made to the Commission of Enquiry and that document has been marked for identification in these proceedings as MFI 'A'. Substantial parts of that document were objected to and were ruled inadmissible. 15Whilst its fair to say that Deirdre and Elizabeth have presented a united front during the course of this lengthy trial, such was not always the case in regard to Mrs Lane's care prior to her death. 16The particulars of negligence as pleaded are set out below. I will address each particular specifically at the end of the judgement but will endeavour to cover these matters generally during the course of the examination of the medical and hospital records and the evidence in the trial. 17Particulars of negligence:- (1) Failing to consider or properly consider and implement treatment for Helen in accordance with New South Wales Health End of Life Care and Decision Making Guidelines as revised in June, 2006. (2) Failing to investigate or investigate and treat Helen's condition of pneumonia or similar condition by the administration of antibiotics or other appropriate drug. (3) Failing to ambulate Helen as a consequence of a decision to bedfast her such that this caused a deterioration in Helen's condition so as to contribute to her death. (4) Failing to provide any or any proper nutrition to Helen so as to prevent the development of anorexia and starvation which contributed to her death. (5) Failing to acknowledge Helen's request for nutrition and treatment so as to contribute to her death. (6) Failing to investigate or properly investigate Helen's pre-hospital seizure. (7) Failing to prepare or properly prepare a management plan for Helen. (8) Incorrectly diagnosing Helen as having suffered hypoxic brain injury. (9) Failing to provide appropriate treatment on the assumed basis that Helen had a poor quality of life pre-morbidly when this was not the case. (10) Failing to obtain accurate pre-hospital admission medical treatment and pre-existing conditions from Helen's treating doctors by either contacting such doctors and by requesting their records and obtaining such information from Helen's primary care giver, Deirdre Lane. (11) Administering or continuing to administer to Helen morphine when it was apparent that Helen was having an adverse reaction to the drug including the development of a chest infection with subsequent development of pneumonia. (12) Administering and/or continuing to administer to Helen morphine when such drug impeded Helen's ability to communicate her wishes in respect to treatment. (13) Administering and/or continuing to administer morphine to Helen when such drug was having an adverse effect upon Helen and her wellbeing. (14) Failing to obtain or properly obtain specialist neurological or geriatric opinion as to Helen's condition so as to properly prepare an appropriate management plan for Helen. (15) Failing to continue to administer to Helen antibiotics when she was in need of such medications as she was developing an infection. MRS LANE'S PRE-MORBID HEALTH HISTORY 18Amongst the documents tendered by the defendant are the clinical notes from Dr Beek's practice over many years, he being Mrs Lane's general practitioner and the family's general practitioner. Dr Beek gave evidence. 19It is also perhaps apposite to note at this point the concession made by Deidre Lane on the last day of the hearing of this matter at TP 117. She said to Dr Raftos:- Now Doctor, Elizabeth and I agree that Mrs Lane may have had a form of dementia and that dementia tends to progress and is not curable. We accept that Mrs Lane had disabilities but that she still had reasonable mobility albeit with some support. We agree that a neurological event occurred on 10/03/07, a seizure, of whatever unknown cause, and we know there was no specific terminal diagnosis. 20The earliest relevant medical record is a report of 31January 1994 from a Dr Prince, an ear nose and throat surgeon, in regard to Mrs Lane which indicates she presented with decreasing hearing in the last 3 to 4 years and although suffering from a sensorineural hearing loss did not at that stage want a hearing aid. I refer to this document because Mrs Lane's ability to hear has been a cause of concern to the plaintiffs, particularly in regard to the way she was treated whilst in hospital. It's probably a fair summation to say that Mrs Lane's hearing did not improve over the years. She had also been treated by way of operation for varicose veins in 1999. 21In 2001 Mrs Lane had a hysterectomy that had ongoing problems. 22On the 13 September 2002 she presented to her GP with what appeared to be a severe cold but the doctor has noted "has strong alternate medical views and came with daughter". 23On 8 October 2002 the doctor noted amongst other things that Mrs Lane was "generally anxious". 24On 12 August 2003, Deidre applied for a Carer's Pension in respect of her mother. This form (ex12) required the ticking of boxes to indicate the status of the person concerned who required care. That form indicates that, at least from Deidre's point of view, her mother was even then considerably in need of help. 25On 18 August 2003 the doctor noted "multiple emotional home problems - presents with daughter who does most of the talking on behalf of mother - draining day at home - lots of disputes - ? sibling rivalry". 26On 22 January 2004 (DTB2 P349) Dr Brendan O'Sullivan, a gynaecologist, reported to Dr Beek that:- Physically Helen is now frail with marked abdominal distension and faecal loading associated with obstipation and constipation. At the time of her visit she had a level of faecal impaction associated recurrence of the low recto seal. My feeling is that she is too much under the direction of her daughter Deirdre who manipulates situation and management. I recommended a combination of Epsom salts, lactulose and suppositories but doubt that she will be unable to implement any of this while Deirdre is driving things. I can only sympathise with the other family members at the hands of this overbearing woman. 27I note that Dr O'Sullivan had been treating Mrs Lane at least since 1994 so that his observations, particularly as to Mrs Lane's frailty and the inter-action between Mrs lane and Deidre, are not those of a one off visit. It is also an observation supported in documents pertaining to the treatment of Elizabeth referred to later in this judgement. 28It is clear from the general medical records that Mrs Lane was, by this stage of her life, not enjoying the best physical health, apparently a consequence of her earlier hysterectomy. 29On 22 November 2004 there is a Casino Medical Centre note that there was a discussion with Leo Lane. Leo voices concerns Helens ongoing health concerns. Leo states he feels she is showing some early signs of dementia. He states that Dr Beek had attended a referral for Helen to be reviewed by Dr Fairfull-Smith but this did not go ahead as his daughter Deirdre felt it not necessary. 30On 27 May 2005 there is a letter from Dr Janet Knox, a GP at Byron Bay, requesting Dr Boyce, a neurologist, to provide an expert opinion. In the letter Dr Knox says inter alia :- Helen recently presented to this practice with her daughter Deirdre, with a progressive history of decreasing mobility, rigidity, and 'anxiety attacks ' Deirdre describes the attacks as being triggered by a stressful event, her limbs become flexed and rigid, she has difficulty breathing, stares into space and has been incoherent in speech. ... She has no history or family history of neurological problems. Her past history includes hysterectomy 4 years ago for ? prolapse O/E shuffling gait, blank face, positive glabellar tap, cogwheel rigidity, hyperreflexia. Abdo - distended and tender. I am concerned that this lady has Parkinson's disease and would appreciate your opinion regarding diagnosis and ongoing management. 31Dr Boyce wrote back to Dr Knox on 1 June 2005 as follows:- "Mrs Lane is 74 years of age. She has had a lot of trouble with her abdomen and trouble with a hysterectomy. Her major problem at the moment is mobility. She also has severe attacks of anxiety. Speaking to the lady it was clear that she has some degree of dementia. She was disorientated in time and place. She wasn't able to add 16 and 13. She couldn't tell me the name of the town she was in. She had a dyspraxia of right and left and finger agnosia. I agree with your findings ...I have had a longer talk with her daughter... I have suggested that she contact her lawyer about her mother's testamentory capacity". 32On 15 June 2005 Dr Boyce referred Mrs Lane to Dr Fairfull-Smith in the following terms:- "The lady wasn't able to give a coherent history. Her major problem was mobility and attacks of anxiety. Clearly the lady has a Parkinsonian type gait and has rigidity to facilitation bilaterally. She has staring affect. She is totally disorientated in time and place. She wasn't able to calculate. I found a dyspraxia of right/left function and finger agnosia. I couldn't get what I felt was a coherent mini mental status. ...I felt that she had a Parkinsonian dementia i.e. a concurrent onset of a dementing process and Parkinsonism within about twelve months. Her CT brain shows widened subarachnoid spaces and increased size of the third and lateral ventricles particularly with decrease in size of the temporal lobes. 33Dr Fairfull-Smith is the director of rehabilitation and geriatric services for St Vincent's Hospital, Lismore. He provided a report to Dr Boyce on 6 October 2005. Amongst other things in that report Dr Fairfull-Smith says:- "Thank you for referring Helen who was seen on 25 August 2005 accompanied by her husband and daughter Deirdre. The most likely diagnosis is corticoid basal degeneration in view of the severity of aphasia, the difficulties initiating actions. This is undoubtedly a dementing process". 34Under the heading "examination" the doctor noted that:- "She needed hearing amplification above her hearing aids to get her to understand adequately. In spite of this it became apparent that she has a significant and severe aphasia being unable to name simple common objects. She could sometimes follow a single command but not a two stage one. She has apraxia being unable to demonstrate or even use a pair of scissors or sign her name. She had difficulty comprehending no matter how information was presented. In naming animals she could only name one and had great difficulty understanding the concept. Getting her to do drawings she was very concrete and literal with a 3D box, writing draw before being shown that she had to copy the box and then just drew a square. With the clock face she placed 12 several times. Also she wrote clock and mis-spelt it. She was very slow in doing all these tasks. A brief physical examination did not show any postural hypertension, primitive reflexes mildly increased tone bilaterally. I will refer her to the dementia outreach service to see if the family wish any further information on this unfortunate condition. I note that doctor was well aware of Mrs Lane's hearing difficulties. 35On 19 October 2005 she was seen by a neuro-psychologist Robyn Gordon. In a report to Dr Knox and Dr Fairfull-Smith of 26 October 2005 she said:- "I attempted an assessment of Helen on 19 October 2005. She was accompanied by her daughter Deirdre who sat in on the assessment. I also had the opportunity to speak briefly with her husband". 36Under a heading "results" she wrote:- " 1. Helen appears to have a severe aphasic disorder with both expressive and receptive difficulties. 2. Helen demonstrated apraxia both in her attempts at obeying instructions and her attempts at basic design. 3. She appeared to have difficulty initiating actions or responses, consistent with anecdotal evidence. 4. Helen's memory was impaired at a very basic level. 5. Attention abilities were grossly impaired. 6. She seemed to be readily confused. 7. Occasional preservative responses were noted in her speech". 37Under the heading "impression" she records:- "Unfortunately it does appear that Helen is suffering from a quite severe dementia; diagnosis of corticoid basal degeneration would appear to be supported in this case. While it is likely that Helen's high anxiety would be a contributing factor, it is not felt to be the prime cause of her current presentation. Helen requires a high level of care and supervision in her daily living. Helen would be unable to make any informed, considered decisions. Helen is also unable to mange her finances. Helen is probably best managed by use of set routines and prompting". 38Whilst there is some debate as to who requested the ACAT to become involved with Mrs Lane's care, Deidre acknowledged at TD3 p12 that both she and her father were anxious for the ACAT team to get involved in her mother's care because of the burden Helen's illness was placing on her and her father. 39Mrs Lane was seen by the St Vincent's Hospital ACAT over different periods of time but more relevantly from the 25 August 2005. An ACAT clinical note of that date indicates that she is deaf and has been very deaf for 8-10 years. It was noted that she feeds herself and shuffles and has poor memory and a CT scan showed cerebral atrophy. It was also noted that she was easily distracted. 40An ACAT clinical note of 7 October 2005 said:- Elizabeth Lane presented at the office with allegations of elder abuse by her sister Deirdre to her mother Helen. Elizabeth alleges that Helen is anxious and frightened at times when Deirdre is around - thinks she wasn't receiving ideal medical and nutritional care. 41On 12 April 2006 her GP notes:- "Review. Long talk. Problems 1. long standing anxiety 2. challenging domestic situation -very assertive daughters-conflicting domestic aims between two daughters 3. critical son. P/h of medical trauma ...indecipherable. 5. belief in alternative therapies 6. denial of dementing process by the family siblings 7. will progress to need n/h care note p/h of chronic anxiety. domestic situation problems difficult to change. suggest use of alpraxalone. note no weight loss". 42On the 28 April 2006 there is, what I presume to be, an ACAT file note in respect of Mrs Lane which says:- "Phone call from Elizabeth Lane. Elizabeth again outlined the differences of opinion with Deirdre about the care provided to her mother. I informed Elizabeth that her father Leo, who has no cognitive impairment, is involved with Helen's case is able to monitor Helen's case". 43An ACAT note of the 9 May 2006 says:- the family conflict continues to rage. 44In August 2006 there is a GP notation of "↑anxiety". 45A further note on 13 July 2006 says there was a home visit to Leo and Deirdre. "Leo notes that improvement in his wife's condition coincided with service from SCCC. Reported family conflict has quietened down so that the household is less fraught". 46However on 18 July 2006 there was phone call from Elizabeth Lane who was again concerned that her mother had been denied a hearing aid by her father despite Elizabeth's opinion she would benefit from it. She was advised to discuss the situation with her mothers GP. 47On 14 September 2006 there was a home visit to Leo and Deirdre and Helen was seen but only briefly. It was explained to them the levels of residential community and respite care and it was reiterated that Helen was a high care patient. 48On 25 October 2006 there was a phone call from Dr Beek in Casino who was receiving pressure from both Elizabeth and Deirdre to contact ACAT. The ACAT already had a referral and they had been in touch with Leo to confirm the referral. It was noted that Elizabeth is now alleging that Deirdre is an alcoholic and that she would like to make a guardianship application. 49On 13 November 2006 there was a home visit by registered nurse who met with Leo, Deirdre and Helen. She noted that Helen required considerable care now, was quite frail and had difficulty mobilising and appeared to be in considerable pain. 50On 15 November 2006 there was an ACAT home visit at Leo's request and a psychologist, Mr Bradley Ward, met with Leo and Elizabeth. The note says:- "Elizabeth had lots of questions re the best way to care for Helen. I named out loud that I would not be drawn into taking sides re hers or Deirdre's views on Helen's care. My answers were only in generalities, as I hardly knew Helen. I concluded with reinforcing ultimate decisions re Helen's care sit with Leo, not with the daughters. Leo is aware of this. 51The ACAT assessment conducted on the 23 November 2006 indicated that:- Mrs Lane required full assistance for showering dressing and grooming. She was mobile but very unsteady. She needed assistance on standing. She was a high falls risk. There were no continence problems but required assistance with toilet and assistance with post toileting hygiene. She had expressive and receptive aphasia which combined with poor hearing and slow mentation made communication difficult at times. Patience and understanding needed. Helen responds well to reassurance. She is an anxious lady and this is an important consideration in her care. At Plaintiffs submissions par 157, (PS par 157) the plaintiffs suggest that this document in effect should have been part of anyone obtaining an accurate history of Mrs Lane's premorbid condition. 52"Aphasia" is the "loss or impairment of the reception or use of language caused by a lesion of the cerebrum." (Gould Medical Dictionary 4th Ed). I cannot see that this document would have made any difference or would have been relevant to Mrs Lane's treatment after the incident of 10 March 2007. All the relevant practitioners well knew of Mrs Lane's communication problems. I cannot see any evidence of her being treated other than with patience and where possible, given her condition, reassurance. All these issues were noted on her admission in one form or another. 53On 29 November 2006 there is report from the Richmond Valley ACAT which says:- I met with Helen, her husband Leo and daughter Deirdre. As you are aware, Deirdre is providing considerable care for her mother. There is minimal help currently, with St Michaels providing some personal care one day per week. Helen also has infrequent social outings with St Michaels. I have approved Helen for an extended aged care at home package as well as high level respite and permanent care. 54On 31 Jan 2007 Mrs Lane was prescribed Amoxycillin and anti-biotic, apparently because of concerns for her recurring UTI. On 23 Feb 2007 Deidre noted that her mother was more unsteady and seemed more frail and had deteriorated very quickly. 55On 8 February 2007 there was a home visit to Leo Lane from the Dementia Outreach Service of St Vincent's Hospital because the "SCCC" had pulled service out apparently due to occupational health and safety issues. The note says "Eldest son John visited and drew up family care plan that Deidre and Elizabeth have agreed to - they are currently working together much better. ... Leo is much more relaxed when family tension is lowered". The note concludes "Saw Helen - severely demented". 56On 27 Feb 2007 Deidre told the surgery that her mother had been deemed "High risk" by the ACAT. 57On 1 March 2007 Mrs Lane was prescribed Augmentin Duo Forte and on 9 March 2007 further pathology tests were ordered by Dr Beek. The results came back after Mrs Lane had collapsed on 10 March 2007 but were negative, confirming later testing at Lismore Hospital. 58On 10 March 2007 Mrs Lane experienced some type of cerebral incident and was taken by ambulance to Casino Hospital. DISCUSSION OF THE SITUATION UP TO THAT TIME 59As may be appreciated from the above Mrs Lane was, by February 2007, suffering from a number of uncomfortable and serious physical problems, considering her age, such as recurring UTIs , gynaecological problems, bowel problems as well as quite severe cognitive difficulties that, I am satisfied on balance of probabilities, were age related dementia, probably with Parkinsonian features. 60It is also quite clear that Deidre was reluctant to follow medical advice in regard to her mother and that both Deidre and Elizabeth were at times antagonistic toward each other over the care of Mrs Lane. From the GP notes it is also quite apparent that the family conflicts were not helping Mrs Lane in her degenerating cognitive state. 61Mr Sergi submitted that during their respective cross-examinations, each of the Plaintiffs attempted to paint Mrs. Lane's pre-morbid health as being far more robust than it was in reality. He said that each obfuscated when specific examples of Mrs. Lane's limitations was put to them and that it was plain that the Plaintiffs, having appreciated the importance of their mother's pre-morbid history to the prospects of their claim succeeding, attempted to re-invent their mother's history. He further submitted that what was of real importance was the overwhelming evidence as to the true position regarding Mrs. Lane's pre-morbid health. He pointed out that each of the Plaintiffs gave histories to Dr. Pearson, their psychiatrist, regarding their mother's pre-morbid condition that were quite different to what their evidence was at trial. 62He gave the example of Deirdre reporting to Dr. Pearson that caring for her mother was a demanding and difficult job and that she realised at the end of 2005 that she needed to care for her mother. In fact Deirdre had applied for a Carer's Pension in relation to the care she provided to her mother as long ago as August 2003. She completed a pro-forma application (ex12) in which it is recorded that Mrs. Lane needed assistance with a significant number of activities of daily living. Elizabeth, gave a history to Dr. Pearson that Mrs. Lane's cognition had been in decline for several years before her death. 63I agree with these submissions. It was quite apparent that often, when confronted with the findings as to Mrs Lane's pre-morbid health by a treating specialist, some excuse was made up as to why Mrs Lane was unable to function well on that particular day. These ranged from Mrs Lane's deafness, to her not having her glasses with her or having comprehension difficulties on the day in question. Whilst some of these reasons may have played a part in her presentation, I have no doubt that the relevant specialists were able to take into account such difficulties and adjust their opinion accordingly. These reports are un-contested and in some, it is quite apparent that the specialist was well aware of Mrs Lane's physical disabilities. 64There is no doubt in my mind that from a time prior to 2005, Mrs Lane's health had been deteriorating not just cognitively but also physically. Indeed Deidre had returned to live at home with her parents so as to be able to help look after her mother. It is easy in hindsight to forget past difficulties and only remember the good things that were occurring. That is fairly natural. But the overwhelming evidence is that by 2005, Mrs Lane's cognitive health was in serious decline. 65It is also quite apparent that from an early time, Deidre's view of how her mother should be treated in regard to many illnesses was at odds with the medical profession. That is particularly evidenced in the 22 Jan 2004 letter of Dr O'Sullivan to Mrs Lane's GP Dr Beek (p349 defendants bundle) wherein he noted that Mrs Lane was "now frail" and that she was "too much under the direction of her daughter, Deidre, who manipulates situations and management". The Doctor felt his recommended treatment would not be implemented "while Deidre is driving things". 66Indeed, by May 2005, Mrs Lane's health was of such concern to Deidre that she took her mother to another doctor, Dr Janet Knox, a GP in Byron Bay who referred her to a neurologist Dr Boyce, who in turn referred her to Dr Fairfull-Smith, a geriatrician. 67Dr Knox obtained a history from Deidre of her mothers presenting problems as being a "progressive history of decreasing mobility, rigidity and "anxiety attacks" triggered by stressful events in which her limbs become flexed and rigid, she has difficulty breathing, stares into space and has been incoherent in speech". Dr Knox found a woman with "shuffling gait, blank face, positive glabellar tap, cogwheel rigidity, hyperreflexia and with a distended and tender abdomen". She suspected Parkinson's disease. (DTB p308). 68Dr Boyce said it was clear that she had some degree of dementia as she was disoriented in time and place, couldn't add and didn't know where she was. In a letter to Dr Fairfull-Smith he said he couldn't get a mini mental state, she had Parkinsonian gait, was totally disoriented in time and place and that he felt she had a Parkinsonian dementia. (DTB p310). Dr Fairfull-Smith found nothing to contradict what was obviously by then a fact of Mrs Lane's day to day existence. 69Perhaps more important is the record kept by Mrs Lane's GP which is revelatory not only of her decreasing health but also the impact the family dynamic was having on Mrs Lane. I am satisfied as a certainty that Mrs Lane's quality of life just prior to the 10 March 2007 was not good and getting worse, with substantial risk of deterioration from both physical illnesses, such as UTIs, and her undoubted dementing process. It is also clear that on the balance of probabilities Mrs Lane had reached a stage of her illness that meant Mr Lane and/or Deidre could not manage her appropriately in the home on any sort of long term basis. The event of 10 March 2007 and subsequent treatment 70I have set out below what, in my view, is the relevant objective documentation of these events from the ambulance record, to the CMDH and LBH clinical notes in chronological order. These are the only contemporaneous written records of what occurred. 71Both Deidre and Leo Lane gave evidence as to the circumstances of Mrs Lane's collapse on 10 March 2007. Mr Lane is now aged 82 and Deirdre is aged 56. More importantly, this event occurred over five years ago and was obviously traumatic for all concerned. Whilst attempts have been made to define with some precision what actually occurred, in my view that is both un-necessary and likely to be inaccurate. Not un-naturally, no one present made any notes of what had occurred. However the ambulance arrived quickly and the paramedics made comprehensive notes of their observations and what they were told by who was there. In my view the ambulance report is likely to provide the most accurate account of the situation that pertained on the day, as opposed to how it may now be remembered or re-constructed by the witnesses. 72The Ambulance Report notes as follows:- seizure → post ictal. Altered level of consciousness p/t 76 year old woman "choking not breathing" O/A PT. Supine with legs flexed. Obstructed airway, laboured respiration, trismus present. Small amount of bloody mucus nostrils and mouth GCS-5. family→ vague with rlx→ ? is/ is not epileptic?? Not on meds? Has had "seizure" before. Apparently had a drink of H2O and a pill→"choked" ? then "fitted" OBS as below both eyes rolled backwards en route to hospital→ pupils equal and reacting to light but sluggish. PT. Recent UTI [urinary tract infection]. PT. Recent fall out of bed (?within last week→ not seen by LMO) incontinent of large amount of urine xl. 73In the following records of what appears in the clinical notes of the CDMH and LBH, the reference to a page number refers to the relevant page in the tender bundle together with the date of the note and, where indicated, the time. I have chosen to move through the notes in this way as again, in my view, whilst not perfect or complete, they are likely to provide a more accurate record of Mrs Lane's treatment than the evidence of both plaintiffs who, for a number of reasons, would not be objectively regarded as being particularly reliable or accurate witnesses. I have also emboldened parts of the clinical notes that reflect instructions from the family as to Mrs Lane's treatment, because one of the complaints, by both plaintiffs, is to the effect that their wishes were neither respected nor acted upon by the hospitals. 74Additionally the plaintiffs have in their evidence and cross examination of the many witnesses, sought to give evidence of and obtain concessions as to negligent conduct on the part of the hospitals. Such concessions have not been forthcoming by any of the treating health professionals nor from the plaintiffs father who had nothing but praise for the way the health system looked after Mrs Lane at this difficult time. 75I have not attempted to transliterate every word in the clinical notes but those that I have regarded as relevant or to which I have been directed by the parties. The notes are handwritten by many different people, some obviously in haste and using various forms of medical shorthand. Some of the words used I cannot decipher and are acknowledged as such. I doubt they have any impact on the substance of the situation. 76The notes have been criticised for being inaccurate and incomplete and not a true record of what occurred to Mrs Lane. I would accept that a note has not been made of everything that occurred but I would not expect that to have been the case in practice. The purpose of clinical notes in a hospital setting is to provide a record of the treatment administered to a patient and other factors that are thought relevant for those professionals involved in the patient's care. They are not and never could be a complete transcript of events nor should that be a reasonable expectation. These notes are no different to the many hundreds of such records I have seen as a judge and as a practitioner. Indeed they are in my view more fulsome than most, which is perhaps a reflection of the problems faced by the medical staff caused by the poor family situation about the appropriate treatment for Mrs Lane. 77Mr Leo Lane, was at all times Mrs Lane's next of kin and the only person, apart from herself, who had the legal right to determine her treatment options. He was also her guardian. Whether or not Deidre was her mother's "prime carer" is not material to that situation. It might only become relevant if it could be established that Mr Lane was himself somehow incapacitated from making appropriate decisions and there is absolutely no evidence of that. Indeed Mr Lane impressed as a very intelligent and compassionate man, despite having to re-live what was undoubtedly a tragic end to the long and loving relationship he had with Helen prior to her death. 78On 11 May 2012 Mr Lane, in the midst of lengthy cross examination by his daughter Elizabeth, said rather emotionally at TP 78 :- I just don't think this is relevant really because we're here to talk about your mother's stay in the hospital, the Base, and then at Casino and whether - I take it that you're claiming that she didn't receive correct medical assistance, and I'm saying she did, and I'm also prepared to sit here and say that the treatment she received from the Base and Casino was over - well, it wouldn't - I would say normal, but over and above what we would have expected. (emphasised) If you remember, the first night she was in that four bed ward and it was a terrible night for everyone. She came into that room that was specially set up, cleared of whatever it was used for before. She had that room with the privacy. It was adjacent to the nurses' station. We had the little balcony out on the side where we could walk out, you know, and it was just so good, and you and Deirdre were able to stay in that room of a night with you mother. We came to Casino. One of the Good Sisters volunteered or asked could she travel in the ambulance with us, which she did and settled Helen in in Casino, and there again they had the private room and you had your section adjacent. I find this upsetting, as you can understand, and everyone in the room will understand that I accepted what was done gratefully, what was done, and I accepted the result, the passing - your mother's passing. You were with me that afternoon. Sorry, your Honour. You were with me that afternoon and your brothers, siblings, were there too Q. Do you - when A. and I just said to her, "Look, you can go now. We're right. We'll be okay," and she just slipped away. You know, what do you want, Elizabeth? 79At TP 91 Mr Lane said:- I think what we need - your Honour needs to establish is, and I thought we'd covered it quite comprehensively, that the care that Helen received from both the Casino Hospital, the Base Hospital thing and the Casino Hospital, was appropriate. That's a lame sort of word, but another one dedicated, caring, and which was just more than acceptable to me and, as I thought, Helen's immediate family. 80At TP 116-117 the following dialogue took place between Mr Lane and Deidre:- Q. What was different about mum in the hospital and mum at home? A. Well, the difference was the seizure, wasn't it, basically. She wasn't - Deirdre, this is, I think, perhaps a little difference we have in the hospital that you tended to think, and perhaps Elizabeth did, but you to a greater extent, was that if we could get her back under the red frangipani tree that, you know, she would be back to normal; normal meaning as she was on that Friday afternoon and I knew in my heart, and I knew realistically that that just wasn't going to occur, and I didn't want the trauma, that terrible word again, of putting her through all that to get her back home because it was my decision. Like his Honour has said, you know, maybe at times, you know, I sound like the defendant in the whole exercise here but the decisions I made, I will say, were 100% mine. You know, sometimes, you know, maybe I might think, "Well, I could have done something different," but I didn't, and I made that decision and I - you know, I live with it, not always Q. I just A. --happily, but I live with it. Q. I'll just keep drawing you back A. I wish you two would do the same. 81Questions as to professional culpability for negligent services are governed by the provisions of s5O of the Civil Liability Act 2002 (CLA) which provides as follows :- (1) A person practising a profession ("a professional") does not incur a liability in negligence arising from the provision of a professional service if it is established that the professional acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice. (2) However, peer professional opinion cannot be relied on for the purposes of this section if the court considers that the opinion is irrational. (3) The fact that there are differing peer professional opinions widely accepted in Australia concerning a matter does not prevent any one or more (or all) of those opinions being relied on for the purposes of this section. (4) Peer professional opinion does not have to be universally accepted to be considered widely accepted. THE CLINICAL NOTES 10 March 2007 82Casino Hospital (Page 100) 10/3/07 Breathing Rhythm irregular, Depth adequate, Quality laboured, Oxygen non-rebreather 15l , Mental State Assessment semi conscious (Page 101) 10/3/07 10.45. IVC inserted, bloods collected ECG attached. Nasoph airway insitu. IDC [in-dwelling catheter] inserted. 11.30 T/F + Lismore Base Hospital. Departure from A&E to LBH time : 11.45 hrs. (Page 102) Coma Scale total 10.45 9, 11.15 10. 83Lismore Base Hospital (Page 1), 10/3/07 Next of kin, Lane, Leo Thomas William, relationship husband, (Page 4), 10 March 2007,Referring letter from Dr Amey:- Thanks for seeing 76 yr Helen Lane, a lady who had an episode of going stiff then collapsing, family report frothing at the mouth and stopping breathing. She has dementia and is not verbally communicative, incontinent of urine and has very poor mobility and is quite deaf. She fell out of bed a few nights ago and hit the left side of her head. She's very difficult to assess .... Family advise recent UTI - has been on Abs and had a clear MSU since. Page 6, 10/3/07, 12.30 hr, Presentation History Ix & Tx of altered level of consciousness - on moving pt - she moans and groans? Pain - pt difficult to access *IDC insitu O/A . NB pt had a fall 2/7 ago - hit head (R eye swollen) Nil LOC Nil vomiting. Breathing Rhythm regular, Depth adequate, Quality easy, Oxygen non- rebreather IOL. Mental State Assessment semi - conscious. 84(Page 8), Sedation Score, Coma Scale 12.30 - total 11, 14.45 - total 11, 16.45 - total 11, 19.23 - total 11. 85(Page 9), Progress Notes 19.15 IV Flagyl commenced. 19.55 Flagyl ceased at relatives request, 2010 analgesics offered and refused at present. 86(Page 10), Emergency Department Clinical Record, TRIAGE date 10/3/07 time 12:29. Doctor C Imhoff:- History of Presenting Illness gradual generalised deterioration past 6/12. 2/52 ago lower UTI / augmentin / msl past week nad, 2° profound deafness, incomprehensible speech, increasing dementia. After breakfast this am, sudden onset became stiff in chair falling out of commode / LOC, became stiff / no auditory indecipherable . (Page 11), - Associated cessation of breathing/turned blue - Involuntary passing of urine / blood from mouth - Resps restarted after 2 breaths from daughter (started CPR) - frothing at mouth - LOC - ? S-10mm - remained ↓LOC - fall out of bed 4-5/7 ago with minor injury to head / no LOC - - Needs assistance with all ADL's - Eyes open to voice - Attempts to obey commands - Incomprehensible speech (normal for her) - pupils 7mm - (?) reactive - Recognising husband - hyperalgesic/allodynia generally - Stiff ++ - Neck in extension arms/legs in flexion. 87NB:- Pages 12,13 &14 appear to be out of order. 88(Page 15), All limbs held in flexion - forced extension seems to elicit pain , rigidity. Neck held stiffly on extension -? photophobia - seems to have pain with any interaction. Impression - generalised tonic seizure -?infection -? Subdural. (Page 16), Impression: vascular dementia→ ? undecipherable CVA/ seizure. Discussed further with husband / relatives / Not for CPR [Cardio Pulmonary Resuscitation]. Reviewed by Dr Coupe - admit MED - NBM [nil by mouth] till speech pathology R/V - S/c morphine for agitation - remove IDC. 89(Page 16), 10/3/07 21.45, Husband expressed wishes that the IDC stay in situ, the same patent and draining 90(Page 13), 10/3/07 Dr Coupe:- family spoke to at length by SD Staff , myself. Given poor quality of life premorbidly and progressive dementia comfort measures vs active measures discussed with family, family happy to provide all comfort measures possible, however to avoid any aggressive measures. (Page 14), Imp: advanced dementia, premorbid poor quality of life, comfort measures - IDC out pls (family wishes) - NBM until r/v (family happy with this) - analgesic as charted, single room if possible - I/V AntiBiotic's as charted - slow IVF - notify ASAP of any further pain or comfort issues arise - admit ↓ Dr Rankin (family will decide tomorrow the possibility of transfer to either St Vincent's or Casino). 91Discussion:-Before moving on to the next day, the plaintiffs made considerable criticism of the LBH for their failure to undertake a number of tests on 10 March to try and elicit exactly what had happened to Mrs Lane. In fact the hospital arranged a CT scan and commenced her on antibiotics in case of infection. This was stopped at the family's request and ceased when the patient's bloods came back from pathology and were clear of infection. The difficulty faced by LBH in dealing with Mrs Lane's family generally is illustrated by the instructions recorded on 10 March that on the one hand at 21.45 Mr Lane wanted the IDC to remain but at another time, the family's wishes were that it be removed. Then at 06.55 on 11 March a nursing note records that the family want the IDC left in! 92I do not accept that any of the admitting doctors failed to obtain an adequate pre-morbid history and I do not accept that pre-morbidly Mrs Lane was substantially any different to how she was observed on admission except, of course, for the fact that she was now not alert or able to communicate and thus unable to give a logical history. It is highly improbable that even if conscious, she would have been able to give such a history. 93The plaintiffs attempted, through Deidre, to retrospectively determine exactly what caused their mothers incident on 10 March at home. Questions were directed as to hypoxic brain damage being dependant on how long she may not have been breathing before CPR was commenced. Questions were directed to any brain trauma caused by hitting her head. It seems the purport of this line of cross examination was to argue that if the proper cause had been determined, she would have been treated differently and perhaps recovered. At page 4 and thereafter of their submissions the plaintiffs argue that the hospital staff made incorrect diagnoses of "vascular dementia" and "stroke" but then baldly assert, without any support (other than Dr Coupe agreeing that epileptic seizures were fairly common in the community), that "Mrs Lane had an epileptic seizure on 10 March" [PS par26]. 94Whatever illness of the brain Mrs Lane was suffering from, the fact is that she did not voluntarily recover to any degree despite being oxygenated continuously and despite her not apparently suffering from any supervening infection or illness. Whilst at different times she showed signs of improvement, those signs were not sustained for any length of time. In particular, she showed none of the signs of recovery that would have been expected from a short hypoxic incident, a mild epileptic seizure or a minor concussive head injury. Despite the plaintiffs' best efforts to establish the contrary, Mrs Lane's pre March 2007 health was, whilst not at an end of life stage, very poor and that inevitably affected any ability she may have had to recover from the hospitalizing incident. 95It is stated in Plaintiffs Submissions 1 Paragraph 23 (PS1Par23) that Mrs Lane was incorrectly diagnosed with a history of vascular dementia on 10 March by the LBH. With respect that is reading more into the clinical notes than is warranted. All the note says is "Impression: vascular dementia→ ? undecipherable CVA/ seizure". That is not a diagnosis and, in the circumstances prevailing, is not an unreasonable impression to have formed according to the experts. 96Much attention was focussed on Ms Rhodes evidence as to what she said to Elizabeth in 2009 about her mother having a "dense stroke". Ms Rhodes is a Social Worker who apart from being involved with the family situation surrounding Mrs Lane's admission to LBH, was not directly involved in her treatment. Whatever her recollection was two years after the event is not really relevant to what was happening at the time given the fact that she was not a doctor or medically trained person nor was she treating Mrs Lane. 97Dr Coupe saw Mrs Lane more frequently than any other doctor at LBH from admission to discharge. Apart from the oral history obtained from members of the family, Dr Coupe noted that Mrs Lane's generally wasted appearance, muscle tone and muscle wasting were indicative of someone suffering from long standing dementia. Dr Raftos found nothing in the notes to suggest that the observations of Dr Coupe were incorrect and he agreed that such signs were indicative of long standing dementia. Even Prof. Ehrlich agreed in evidence that the more physically incapacitated Mrs Lane was before her CVA, the less positive was her outlook for recovery. 98Section 5O of the CLA requires a plaintiff to prove that the defendant has acted in a way that is both not in accordance with "peer professional opinion" and is also "negligent" as that expression has been determined in Wyong Shire Council v Shirt. In the present case the only independent expert evidence of peer professional opinion is in the evidence and reports of Prof Ehrlich, Dr Obeid and Dr Raftos and to some extent, Dr Mellick (Ex 47). All the other medical evidence given in the trial comes from those actually involved and therefore would not normally be regarded as independent. 99However it is not enough for the plaintiffs to simply establish that a particular aspect of Mrs Lane's treatment could have been handled differently. They need to establish that she should not have been treated as she was and that the treatment she in fact received was negligent. The more complex a treatment situation and the more varied the factors impinging on appropriate treatment, the more difficult it becomes to establish that a particular treatment or treatments was or were outside peer professional opinion and negligent as per s5O CLA. 100It is also the case that in a triage system that pertains to most urgent admissions, the hospital professionals have to make a number of choices some of which may not be in the patient's immediate best interests. By that I mean the resources available are necessarily limited and have to be applied effectively and efficiently as best can be done having regard to a wide ranging set of circumstances only some of which may relate directly to the patient. We have heard in the present case, for example, that the speech pathologist at LBH had to potentially respond to all the hospital patients requiring her services and she was not on duty seven days a week and 24 hours a day. The fact that a speech pathologist or radiologist or specialist doctor is not immediately available to look at a patient is not evidence of professional neglect. 101Where a patient is admitted unconscious, the hospital has an obligation to try and assess the reason for that fact, institute appropriate treatment and consult with the next of kin as to any treatment decision that needs to be consequentially made. 102The plaintiffs made much reference to a document (Ex 1) entitled End of Life Care and Decision Making Guidelines (ELCDMG), a document prepared by the NSW Health Department. The plaintiffs relied on this document as somehow providing a checklist of conduct which, if the defendant did not follow somehow established evidence of negligence on its part. There is a diagrammatic representation on page 7 of the document as to the processes involved. It was put to a number of persons that no such diagram appeared anywhere in the hospital records, as if that absence was indicative of a breach of the duty of care. Clearly such a belief is misguided, as is the belief that this document is a be all and end all of the defendant's responsibilities. At PS1 Par15 it is stated that Ms Deidre Lane believed if the ELCDMG had been adhered to her mother would not have died. However the plaintiffs have failed to establish any connection between their mother's treatment and anything relevant in the ELCDMG. 103The ELCDMG document is a guideline more geared to situations where persons enter hospital suffering from some life threatening injury or disease which results in considering the best way to help that person once it is recognised that medical treatment will not result in any recovery. Mrs Lane's situation was one that is common in the elderly, especially where there has been a pre-existing dementing process. That there may be a difference of opinion as to how such patients are treated as well as the fact that one course is taken rather than another, is not of itself evidence of negligence. The fact is that this is difficult point of time for any family. The medical process is clouded by religious and ethical issues which are usually not relevant to determining what is appropriate professional treatment in accordance with civil legal obligations. 104Having regard to these guidelines, I am not persuaded that any conduct of the hospital fell outside them. As Mr Sergi points out in his submissions from Par 113 to Par 128, the plaintiffs have not established that any relevant part of the ELCDMG has been offended against. Indeed the document makes reference to there being no right to treatments of no or negligible benefit or which are, in the circumstances, unreasonable (cf P2 Ex 1 & P9 @ Par 6.3). 105What is particularly apposite to this case is at 7.4 on P 13 where it is said that "use of artificial hydration and nutrition is an intervention with its own possible burdens and discomforts, for example, those related to having tubes in situ or regularly replaced. Withdrawal of artificial hydration and nutrition, like the withdrawal of other medical intervention, can be seen as a treatment limitation decision that may be made in accordance with these guidelines". 106The plaintiffs were asked on many occasions to point out a particular part of the guideline they say had not been followed. Apart from the example referred to above, they were unable to do so. 107In their submissions PS1 par 161 the plaintiffs say that it wasn't until 19 March that it was first noted "no intervention". Whilst that may have been the first time those particular words were used, it was clear from admission that a family directive was "Not for CPR". In other words if Mrs Lane stopped breathing or she went into cardiac arrest, the hospital was not to undertake active measures to get her breathing or her heart operating - she was to be allowed to die. That situation did not, in effect, change at any stage during her admission to LBH or CDMH. 11 March 2007 108(Page 17), 11/3/07 06.55, 2.5ml morphine, family want IDC left in. 10911/3/07 Dr Seneviratne: poor quality of life (Daughters are looking after feeding and washing Respiratory arrest yesterday according to daughter - no breathing <5 mts. Daughter did mouth to mouth respiration. (Page 18), Response not rational. Same management as instructed (ie. by the registrar). 110(Page 19), 11/3/07 Dr Coupe (MD), minimal improvement clinically - will notify Dr Boyce and Dr Fairfull-Smith that pt is in hospital. 111Discussion:- The plaintiffs were critical that Mrs Lanes previous treating doctors had not been called in by the hospital. The above note is a clear indication that these doctors were to be notified by Dr Coupe. However the situation was that neither of the nominated doctors had seen Mrs Lane for well over a year - since mid 2005. It is doubtful that their intervention would have made any difference nor has it been established that whatever was done or not done in that regard, somehow constituted improper professional treatment of Mrs Lane leading to her death. There is nothing to suggest to me that the LBH did not make themselves aware of all that was necessary of her prior history in order for the proper treatment of Mrs Lane. 112(Page 20), 11/3/07, 15.00, IDC bag changed, adequate amount dark urine drained. Analgesia given as charted to ↓ respiratory rate and effort and for pain on movement. O2 via Hudson mask, 11311/3/07, 22.00, O2 therapy continues. Family in attendance and attentive to Helen's needs. Care carried out in consultation with family S/C morphine given with effect. Required suctioning x2. 114Discussion:- At PS1 par 166 it is stated that "Indeed if she did have pneumonia, the effect of the morphine contributing to Mrs Lane remaining bedbound, and on the Sunday 11th March 2007 having difficulty swallowing saliva in the evening, would have contributed to it." This is a statement made without any foundation either medical or factual and is in effect a lay opinion of the plaintiffs that is not supported by any acceptable medical evidence. 12 March 2007 11512/3/07, 03.10, IDC in situ. Morphine given for agitation. O2 in situ via Hudson mask. Family in attendance. 11612/3/07, 10.20, S/B Burrell/Coupe/Biscoe. Poor functional state. Deterioration esp last 3/12. sat - went stiff when swallowing tablets , stopped breathing a few mins. Imo: no change. Plan: cease ceftriaxone. Morphine and O2 as per family requests. 117(Page 21), 12/3/07, 12.30 Social Work:- pt's daughter Deirdre has been pt's primary carer @ home with support from pt's husband Leo & another daughter Elizabeth. Past history conflict within family re pt's dementia. Family now in agreement re comfort care. Both Deirdre & Elizabeth will continue to assist in care for pt and wish to alternate sleep over in pt's room. 11812/3/07, 14.50, IDC patent & draining, O2 via nasal, pt comfortable & largely unresponsive, cries out when being turned & position changes, settles quickly. 11921.15, reasonably settled, paracetamol given for pain, IV therapy continues. O2 via nasal prongs continues. Pt remains at lowered level of consciousness. Pt crying out when moved or touched. 13 March 2007 120(Page 22), 13/3/07, 07.00 Nursing: Pt very unsettled at beginning of the night. Seemed to have spasms+pain. Daughters would not let me give any morphine. Could talk her into giving her mother Valium I.V. for the spasms. Pt also very constipated → gave indecipherable lax with no success. Very hard stool. Gave pt, morphine S.C. early in the morning. Settled after that. 121Discussion:- The issue of the administration of morphine to Mrs Lane at different times whilst at LBH occupies a number of places in the clinical notes. The plaintiffs had the view that morphine should not be given to Mrs Lane because of their understanding that it tended to reduce respiration and was likely to have a deleterious effect on their mother's situation. The medical records as to the administration of morphine were examined in detail with attempts to reconcile other observations of Mrs Lane with the cessation or introduction of Morphine at different times. 122At PS par 97 it is submitted that:- "It is clear that any adverse or unwanted side effects Mrs Lane exhibited were going to be ignored. Her treating physician was prepared to continue to administer a drug which would cause her death (emphasised), rather than investigate the source of pain or agitation which could possibly have been caused by the very actions of medical staff inserting a urinary catheter and continuing for it to remain "insitu".". The evidence, however, fails to establish that the small dosages of morphine given subcutaneously would have led to Mrs Lanes death. Further the argument made is illogical. I would expect the hospital to continue to treat pain until the cause is known and alleviated. 123Dr Obeid had much to say in his reports about the use of morphine in Mrs Lane's case. In his first report commencing at 3.10 he says amongst other things:- 124"I am not aware of any adverse reactions to morphine experienced by Mrs Lane. There is no evidence in the medical records that morphine was in any way causally linked with the development of pneumonia. In common careful usage, morphine does not cause pneumonia. The only way in which it could do so would be if it were to be used in excessive or large doses and in a careless manner. Even then, in order to cause pneumonia, it would need to either cause significant respiratory depression first (which then may or may not lead to the development of hypostatic pneumonia) or cause reduced consciousness (which then may or may not lead to aspiration pneumonia). 125The medication charts you have provided to me document what I would describe as minimal use of morphine. The doses given were as follows: 10/03/2007: one dose of 2.5 mg subcutaneously 11/3/2007: five doses of 2.5 mg subcutaneously 12/3/2007: two doses of 2.5 mg subcutaneously 13/3/2007: one dose of 2.0 mg and one dose of 1 mg subcutaneously 14/3/2007: one dose of 1 mg subcutaneously 15/3/2007: one dose of 2.5 mg subcutaneously 126These doses are all in keeping with standard practice and in no way represent excessive doses likely to produce respiratory depression in most patients. The observation charts recorded at Lismore Base Hospital show no evidence of respiratory depression. Mrs Lane's respiratory rate was at all times greater than 20 per minute and with supplemental oxygen, hypoxia (Sa02 of less than 90%) was avoided. There is absolutely no evidence that morphine caused Mrs Lane any harm at all, let alone pneumonia. It is also relevant to note that Mrs Lane appeared to be in pain and was requiring such analgesia. The use of morphine was thus clinically indicated. Morphine, in the standard low doses used in the management of Mrs Lane, does not impair communication ability. There is no evidence morphine had any adverse impact on Mrs Lane's well-being. Rather, it is more likely that the family's requests to withhold morphine may have impaired Mrs Lane's well-being in terms of pain control." 127In his second report he was asked to comment on Prof Ehrlich's assertions in regard to the hospitals morphine use as being "very odd indeed". Dr Obeid said:- 128"As I pointed out in my original report, Mrs Lane received very small doses of morphine. A total of only 26.5 mg was given over 6 days. This is a very small dose by any standard. Professor Ehrlich appears to have arrived at his conclusion that the use of morphine was "odd" on the basis that "there is no evidence she had pain and morphine is essentially an analgesic. Furthermore, morphine is a ... respiratory depressant and this is the opposite of what is required in a person who has bronchopneumonia". I disagree that there was "no evidence she had pain". On a number of occasions the medical records point to pain suffered by Mrs Lane. For example: "continued to moan and groan" (RN report 10/03/2007 2210 hours) Had "pain on movement" (RN report 11/03/2007, 1500 hours) Was "crying out when touched" (RN report 12/03/2007, 2115 hours) "Seemed to be in pain" (RN report 14/03/2007, 0645 hours) 129I note that on one occasion, Mrs Lane's family requested that morphine be given for pain relief prior to the administration of an enema (see entry 13/03/2007 1525 hours). Hence, even Mrs Lane's family members noted that pain was present, at least on one occasion. 130Whilst I agree with Professor Ehrlich that "morphine is essentially an analgesic", it is also important to note that morphine is used for the control of many other symptoms in the palliative care setting. Such symptoms include cough, dyspnoea, agitation, diarrhoea and pulmonary oedema. It is true that morphine has a "respiratory depressant" effect, but this is at much larger doses than administered to Mrs Lane. At no stage was Mrs Lane's respiratory rate below 20 breaths per minute. There is therefore little evidence to support the claim that she suffered respiratory depression as a result of the very small doses of morphine she received. 131It is important to understand the principle of double effect when discussing the use of morphine and its potential side-effects. It is common in the palliative stages of an illness for patients to suffer from a distressing symptom that is amenable to therapy with morphine (or other drugs). If use of such medications is in keeping with appropriate clinical care in standard therapeutic doses and an adverse outcome occurs, the principle of double effect is observed. There is no intention to cause an adverse outcome and the appropriate dose of medication is used. Relief of the symptom is expected and usually occurs. Any adverse outcome is unintended and does not constitute an act of harm on the part of the prescribes." 132I am satisfied that any morphine given to Mrs Lane was at such a low dosage as to have been highly unlikely to have had any deleterious effect on her overall situation. The maximum dosage ever prescribed was 5mg subcutaneously over a number of hours which is a very low dose and was, according to the medical evidence, unlikely to have caused any deterioration in her condition despite Mrs Lane's size and weight. The purpose of giving morphine is both for pain relief and patient comfort. This was not the situation one sees in terminally ill persons in great pain who are prescribed increasingly larger doses of morphine to a stage that the morphine begins to affect the ability of other organs of the body to function appropriately. In fact there is no expert evidence to suggest that the prescription and amount given of morphine to Mrs Lane was either inappropriate, incorrect, negligent or hastened her ultimate demise 13313/3/07, 10.20, S/B Coupe/ Biscoe:- , family present, pt looks comfortable, cries out sometimes, constipation. Plan, subcut fluids, enema, analgesia, if family decide to remove IDC, then it can be removed, then monitor UO [urinary output]. 13413/3/07, 15.25, settled when quiet, but does respond to painful stimuli & position change. Enema given as charted, minimal result, continues O2 via , family members requested some pain relief prior to enema & 2mg decided by family. Result to enema minimal at this time. Daughters have requested RMO to attend & R/V pt's condition. RMO paged & he will attend ASAP. 13513/3/07, 16.20, paged Dr Coupe - re family wishes pt to have Valium before examination - but it is only recorded for nocte use. 13613/3/07, 17.20, Dr Coupe administered a fleet enema. Pt's relatives have refused to have their mother receive S/C morphine. Doctor agreed that it is available PRN if required. So pt repositioned without analgesia. 13713/3/07, 21.30, have given pt IV 0.5mg Valium as relatives have still refused any offer analgesia. Pt has opened her bowels well,. Pt's daughters wished to do her mouth care. Pt is very sensitive to touch, especially her lower limbs. Pt has now started to pull on IDC tubing - tubing secured against leg. There were some social - AVO issues with one of the relatives. Is it possible to have a s/worker review? 14 March 2007 138Page 24, 14/3/07, 06.45, pt seemed to be in pain. Made daughters aware of but they would not let me give more than 1mg of morphine SC. It didn't seem to be settled after that, but daughters told me she'd always be like that and they're sure that she's not in pain. Explained them that she looks very uncomfortable to me and that I'd like to give her morphine before PAC (Pressure Area Care), daughters decided rather not to have PAC. Explained them, how important it is and made them aware of pressure areas and how quick they occur. Daughters still preferred to leave her in the same position to keep her comfortable and not give any morphine. They also asked if IDC could come out because this might be the reason for her pain. I told then I'd like to leave this decision up to morning staff. And I highly recommended meeting with relatives medical team + nursing staff to talk about these issues. 13914/3/07, 1000hrs, daughters refused observatory interventions therefore no obs taken. 14014/3/07, 1005, S/B Burrell/Biscoe/Coupe, family present nil improvement in overall condition, pt looks in pain. 1mg morphine inadequate. Low grade fever. Sat 93% 3L. stable. Daughters discussed desire for home palliative care. Husband (next of kin) does not want this - would prefer pt to stay in hospital. Son agrees. Adequate analgesia discussed/family. Page 25, (cont) plan 1. remove IDC 2. reduce IV fluids to 30 ml/h 3. chart regular morphine 5mg q4h. For no other analgesia. 14114/3/07, 13.05 Social Worker:- met pt's husband, 2 sons & one daughter. D/c concerns re care & conflict issues re daughters overriding father's wishes re mother's care. Daughter (Elizabeth) advised concern morphine was affecting mother's respirations & both daughters wanting to take pt home - feel she has not been adequately assessed and that the morphine was interfering with assessment - Elizabeth advised she & her sister believe their mother has woken up since ceasing morphine. The older sister Deirdre wants the IDC removed - advised her mother has thrush and the IDC is irritating mother - she needs to be cleaned up and needs a douche. 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 (SW cont page 26), in addition Elizabeth has an AVO against her sister Deirdre and SW has spoken to Elizabeth about same. Nursing staff are aware possible security issue. Daughters have requested a speech path R/V as think pt may be able to swallow as she is yawning. SW has made referral via phone to speech - not available today. SW did discuss pall care R/V this is to look @ alternative pain relief & to hopefully assist daughters perception of situation SW will continue to support. SW has concerns re pt's daughter Deirdre - who very involved in mother's care, talk fast, and appears tired - teary @ times SW PLAN, to continue support to family. Have spoken to day nursing supervision. Have made referral to speech. Liaison with med team. Have spoken to pt's husband re guardianship & his role as decision maker. 142Discussion:- The social workers note is revelatory of the conflict that was escalating among the family as to Mrs Lane's treatment. The situation regarding the IDC and its removal or otherwise is, to say the least, subject to confusing changes of mind by the family or individual members of it. However there is no expert evidence to suggest that the catheter situation caused any deterioration in Mrs Lane's condition or was an inappropriate form of treatment. I have no doubt that having an IDC may be uncomfortable and even more so if there is the presence of thrush, but that has to be counterbalanced against the serious problems associated with urinary retention and the wearing of uncomfortable wet sanitary pads and the like. Mrs Lane was not able to indicate what she felt and attempts to guess at her feelings are somewhat meaningless in determining whether or not appropriate professional practice was followed. 143Page 27, 14/3/07, 13.30 Medical Burrell:- the plan at present for Mrs Lane is to continue with the catheter remaining in. No regular morphine to be given but if Mr Lane requests that she be given morphine then this is to happen. If either Deirdre or Elizabeth interfere with this the medical team need to be notified immediately. It is clear to me that Deirdre is not behaving in a rational manner with regard to her mother's impending death. 14414/3/07, 15.30, Nursing: family in attendance. Assisted family to bed sponge and change. Noticed that pt has a lumpy discharge around vaginal/groin area. One of pt's daughters insists on doing most of pts personal care - canesten cream applied to pts area of discharge by daughter at her insistence. Family generally challenge to deal with and difficult to establish and maintain pt care whilst daughters in attendance. Daughters refusing morphine for pain management. 14514.3/07, 16.00, Medical Burrell:- patient comfortable & does not appear to be in pain. The plan for this evening/overnight is that Mr Lane (continued on Page 28) 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. 146Page 28, 14/3/07, 15.00, Social Worker:- R/V of pt & family this afternoon. Daughter Elizabeth v upset re pt being administered morphine. Will R/V in am. 14714/3/07, 16.50, Nursing: repositioning of pt is necessary for PAC, spoken to pt's husband (Leo) and he wishes to comply with Dr Burrell's recommendation but the daughter wished no morphine prior to repositioning. Leo has therefore agreed to allow 2.5mg of morphine s/c. Observations registered before administration and then again an hour later to indicate to his daughter that there are very small obs changes. 14814/3/07, 20.00, ADD: asked to reposition pt, and wished to administer Valium before hand. Daughter said she wished to ask her father first, who is due back shortly. Also was going to agree IV Panadol but again was asked not to unless she has a temperature, seems comfortable at (continued page 29) this time. Daughter wishes to do the mouth care and replace low dentures. Have appeased to their wishes, waiting for Leo to arrive. 149Page 29, 14/3/07/ 22.10, Nursing: Husband has recommended morphine as to Dr Burrell's script. The daughters have still large issues about giving any medication and the conversations in the room because very loud - the nurse in charge took all the family out for further discussion. Pt repositioned in half the time with the wards man and in my opinion, the pt did not 'cry out' as much as previous repositioning / also explained this to the husband and asked him to discuss the repositioning with his daughter. Family wish to discuss care with team in the morning. 15 March 2007 150Page 30, 15/3/07 05.25, Elizabeth, Deirdre and son present. Quizzed by Deirdre as to whether I would be giving Helen morphine overnight. I explained that if Helen looked in any distress that I would indeed administer morphine. Mr Lane consulted by phone by son and requested that only 1mg of morphine be given if absolutely necessary @ my discretion. 2/24 PAC and repositioning attended. Helen cries out initially when repositioned but settled within 2 minutes to a sound sleep no morphine given yet. Son and Elizabeth stayed in room overnight, both managing to get some sleep. 15115/3/07, 09.10, family wish further discussion with team. 15209.40, Pt given sponge bath in bed - repositioned to be on her back + according to daughters request. Mouth and hair care given by daughter. Family wished not to administer analgesia, but to do so if pt in distress. IDC in situ. Family would like to have the pain /palliative team to R/V. 15315/3/07, 12.00, S/B Coupe/Biscoe, patient seems comfortable (continued on page 31) fleet enema charted. IDC out. Speech path will r/v today. Morphine 2.5-5mg PRN q4h. 154Page 31, 15/3/07, 12.30, Speech Pathologist assessment:- pt referred by SW to assess swallow per family request. Noted complex family situation. Pt with Hx of Parkinsons Dx, dementia and seizure. Swallowing, pt LIB & difficult to assess alertness, pt making nil attempts at eye contact, groaning observed only, pt unable to perform any movements for an oral musculature assessment despite tactile stimulation, nil spontaneous swallows observed. PT IS NOT SUITABLE FOR A SWALLOWING ASSESSMENT TODAY DUE TO *POOR FOLLOWING DIRECTIONS *POOR ALERTNESS AND * NIL SWALLOWING SKILLS OBSERVED. Above explained to pts family. Risk of feeding pt is very high for aspiration (continued page 32) of any consistency. Recommend: (1) Keep NBM, (2) Maintain regular oral care. Strict instructions given to family to ensure nil aspiration. (3) Monitor temps & chest. (4) Will monitor. (Kostal) SP PATH 2157. 155Discussion:- The issue of a speech pathology review is of substantial concern to the plaintiffs who maintain that both reviews at LBH and CDMH were inadequate and did not take full account of Mrs Lane's inability to hear and her difficulties without glasses. Both speech pathologists gave evidence over the 17th and 18th of May. The hospitals had directed Nil By Mouth (NBM) until a speech pathologist assessment. Ms Kostal saw Mrs Lane on 15 March ie four to five days after admission. I do not accept that Ms Kostal was negligent in her assessment of Mrs Lane or that she did not take into account her known medical history. Until it is known that a patient has the capacity to swallow spontaneously, it would be negligent for the hospital give any oral intake because of the severe risk of the patient choking or aspirating and ending up with pneumonia. 156The plaintiffs argue (PS par 119) that they waited and waited for the recognition that their mother was able to eat but this was never forthcoming. However there is no evidence that Mrs Lane was in fact able to obtain enough nutrition orally to keep her alive. Occasional spoons of yoghurt or other liquid food do not indicate a capacity to be able to eat. At best it indicates a capacity to swallow something at that particular time. The plaintiffs had the opportunity, although contrary to medical and nursing advice, to provide to Mrs Lane with whatever she was able to intake by mouth if they wished to do that. There is no evidence from them that Mrs Lane ever had a meaningful capacity to be able to accept any such nourishment, even with the assistance of her daughters. 157It is argued that Mrs Lane was subjected to treatment or lack thereof that discriminated against her rights as a patient. The plaintiffs submissions, although fulsome, are at times difficult to comprehend and respond to. They rely on many isolated events that they say in effect if put together paint a different picture of Mrs Lane than was the case suggested in the clinical notes. For example a Sister Moran made an affidavit dated 9 May 2012 (Ex 5) that was tendered to help establish Mrs Lane's level of consciousness. In it Sr. Moran says that on 17 March 2007 (St Patrick's Day), over a half hour period, Irish songs were sung and Mrs Lane "responded with her beautiful smile. She was very happy that we were there and even though she tried to communicate she was unable to speak. She gazed directly into our eyes smiling. She certainly understood what we were singing, because she tried to join in with us... she certainly wasn't unconscious or semi conscious." 158Of course much of what is stated above is not admissible and Sister Moran didn't give evidence. I don't know how Mrs Lane tried to "communicate" or what made Sister Moran think she understood what was being sung. But even if this was a verifiable event, in what way does it change anything? A smile does not translate into cogent thought processes. It can simply be a spontaneous jolt of memory of some happy event. I do note though that despite these favourable conditions at that time, Mrs Lane could not communicate in any meaningful way. She was not "awake and alert". 159At TP 68 of 11 May, Mr Lane, in cross examination by Elizabeth, said this about St Patrick's Day:- "But, you know, with a little faith we did believe, maybe, just maybe, but the medical prognosis at that stage was that it wasn't going to happen and that we would do what we could; "we" meaning family and the medical staff, to make her life at least as comfortable as possible, and you'll recall that that occurred and you will recall, you and Deirdre, St Patrick's Day, you know, which summed up her whole being. She was almost the person we knew on St Patrick's Day." At this point Mr Lane broke down in the witness box. 160It is suggested that Mr Lane was saying in that evidence that Mrs Lane had recovered to the point of being then almost the person they had known from before. (PS Par 122). I do not accept that such is a proper or fair representation of what Mr Lane meant. The fact is that whatever occurred on that day was not sustained thereafter. 161I am not satisfied that the plaintiffs have established that anything done or not done by Ms Kostal or Ms Lucks as Speech Pathologists was otherwise than in accordance with accepted medical practice. Ms Lucks was the Speech Pathologist at CDMH and her examination of Mrs Lane appears later in these records. However expert opinion favours the conduct of the staff. This point in time ie 15 March, is important having regard to a number of assertions by the plaintiffs as to the lack of appropriate nutrition of their mother by anyone on the staff. 162Dr Obeid commented on the issue of feeding Mrs Lane in his reports. In the first report he said:- "Intravenous fluids were administered to Mrs Lane. In addition, a mutual decision (health care staff and family members) was reached to allow oral feeding as tolerated. It is incorrect therefore to say that the defendant "failed to provide any or proper nutrition". In situations where a patient has advanced dementia and is unable to take adequate food and fluids by mouth, the question of enteral tube feeding often arises. It is important to note that the scientific literature suggests that in this clinical situation, the use of enteral feeding tubes for nutrition has not been shown to prolong life, improve nutrition or improve the quality of life of patients with advanced dementia". (emphasised). 163In his second report, Dr Obeid went into the issue in more detail. 164"The complications of oral feeding when unsafe to do so are the development of aspiration pneumonia, acute hypoxia and choking. It appears that the continued feeding of Mrs Lane may have contributed to fever and hypoxia, but my opinion is that this would have occurred at some stage even if Mrs Lane's daughters had not fed her against advice. 165Use of a nasogastric tube has complications of tube misplacement (causing pneumothorax), nasal septal necrosis, ala nasi ulceration and aspiration pneumonia (due to reflux of feeds and continued aspiration on saliva). As outlined in my original report, studies have not revealed any benefit of nasogastric feeding in terms of survival, aspiration risk, nutritional status or quality of life for patients with advanced dementia. 166Use of PEG tube feeding has complications of anaesthetic risk, infection, peritonitis, haemorrhage and aspiration pneumonia (due to reflux of feeds and continued aspiration on saliva). As outlined in my original report, studies have not revealed any benefit of PEG tube feeding in terms of survival, aspiration risk, nutritional status or quality of life for patients with advanced dementia. 167The only other nutrition option I am aware of is total parenteral nutrition (TPN). This has numerous complications, particularly related to infection, haemorrhage, electrolyte disturbance and fluid overload. It is a highly specialised treatment, usually provided in the intensive care setting. It is indicated in patients whose gastrointestinal tract is unsuitable for enteral feeding, usually due to gastrointestinal disease. It was neither indicated nor appropriate in the care of Mrs Lane". 168"Parenteral" is defined in the Gould Medical Dictionary (4th Ed) as "Outside the intestine; not via the alimentary tract, as a subcutaneous, intravenous, intramuscular or intra-sternal injection. 169Although subjected to lengthy cross-examination, neither Dr Obeid or A/Professor Raftos moved away from the opinions expressed in their respective reports. 170In "Disputes & Dilemmas In Health Law" edited by Freckelton & Petersen (Federation Press 2006) a chapter is devoted to end of life decisions. This chapter was written By Prof Mendelson of Monash University Law faculty and Prof Ashby medical Director of the Centre for Palliative Care. Dealing with Medically Assisted Nutrition & Hydration they say:- Popular notions of death without MAN&H as being a cruel form of suffering in which the dying person "starves" to death, need to be dispelled through explanation of the normal process of dying, and the capacity of palliative care to adequately prevent any potential discomfort that may result from decreasing oral intake. 171A gradual reduction, and eventual cessation, of oral intake is a normal part of the dying process. Clinical experience shows no basis for supposing that patients receiving palliative care are experiencing symptoms of starvation and dehydration, which would be lessened or eliminated by the routine provision of MAN&H through a nasogastric or percutaneous gastrostomy tube, or by intravenous feeding. Poor appetite and lack of energy are intrinsic effects of the underlying condition, and cannot be overcome by treatment. Inevitably as the disease progresses and death approaches, patients show biochemical and clinical evidence of dehydration, and profound loss of weight, anorexia and lassitude. There is no evidence, however, that correction of dehydration in the terminal phase is beneficial. For example, although assisted nutrition earlier in the cancer journey may improve outcomes and life quality; this is not the case in the later stages. 172Consequently in palliative care units, all treatments which are not required for comfort are stopped when a person is dying. Food and drink as well as assistance with eating and drinking is always available to satisfy a patient's thirst and hunger, but MAN&H is not routinely used when oral intake ceases. MAN&H through subcutaneous fluid infusion, is only used for symptomatic thirst or hunger which cannot be adequately treated by other means. 173Clinical decisions to abate MAN&H for patients who have reached the final stages of life and have no hope of recovery are made every day in palliative care units, intensive care wards, in general wards of public and private hospitals, private residences and nursing homes. Clearly, however, abatement of artificial sustenance involves sensitive issues, with ethical, cultural, social and religious dimensions that have generated public and health professional concern in many countries over recent years. 174This article clearly supports the views of Dr Obeid stated above and is evidence of peer professional opinion about which I can see nothing controversial. 17515/3/07, 12.45, Biscoe/Coupe, have discussed with Elizabeth, Deirdre and husband Leo that morphine will be offered 4th hourly & given if felt appropriate, speech path input noted with thanks. Explanation given to daughters & husband about risk of aspiration. Family in agreement that IDC can come out. Daughters are happy to change pads & have explained that may go into urinary retention & need another IDC if that occurs. 17615/3/07, 12.50 Social Work 2329, SW R/V - have liaised /c Dr Laird re palliative care & called pall care. They will R/V pt @ 11 am tomorrow. 177Page 33, 15/3/07, 13.00, Coupe/Biscoe, discussion with husband Leo & sons John & Ralph. IDC will be removed if no UO by 8 hours, or pain, insert new IDC. This has been agreed to by husband. 17815/3/07, 13.15, contacted Dr Laird who is the primary physician in the absence of Dr Burrell . Concerns exist regarding pain management. As noted above, morphine will be offered regularly to patient if she is deemed to be showing signs of discomfort /pain. Difficulties arising with certain members of the family refusing administration of morphine & other members, including husband consenting to administration. Dr laird has agreed for me to notify the Director of Medical Services. Addit: D/W NM importance of providing continuity of nursing staff to assist in developing professional relationships with the family. 179Page 34, 15/3/07, 13.30, Nursing: have asked if I may reposition pt, but Elizabeth (daughter) asked if I could leave her for a while, due to her restful state. Seems comfortable I wish to remove IDC and give Fleet enema. 18015.00, ATD: the fleet enema has been given. IDC removed. Pt repositioned onto left side with the assistance of the daughters. Pt only seemed to be moving on leg movement. 18115/3/07, 16.40, Daughter reported to nursing staff that she had fed her mother 4 teaspoons of yoghurts and a 'few sips' of water. Explained to daughter that by doing this there is a high risk of aspiration as per speech pathologist review earlier today. Daughter said this is a 'risk we are willing to take because we have nothing to lose'. Daughters were told that if they are to (continued Page 35) given their mother anything more orally (although against medical advice) to inform nursing staff. 182Page 35, 15/3/07, SB Dr Laird, progress noted, Mrs Lane appears comfortable , relatives (daughter) happy = progress. 18315/3/07, 18.10, Nursing - daughters, they stated that they has repositioned pt, after being incontinent of faeces. Daughters were asked if pt has passed urine but they were unsure. Asked daughters to get nursing staff next time they changes pt's pad. 18415/3/07, 20.40 Pt's family attended. Pt incontinent of urine & faeces. Family refusing any pain relief for pt. Pt sitting up in (continued Page 36) bed, is alert & mumbling - unable to understand what pt is saying. Comfortable. 185Page 36, 15/307, 22.15 Nursing - called into pts room as family said pt was in pain. Pt groaning & grimacing - suggested to family that she has s/c morphine, family refused (including husband Leo). Suggested that IV paracetamol be given, same agreed to by family & currently in progress. Pt incontinent of urine. 18615/3/07, 22.30 Nursing: pt's husband Leo who is the "spokesman" of the family gives the following instructions: if pt is in pain longer than 5 mins and a massage of daughter doesn't help within these 5 mins, pt has to have 1mg of morphine S.C. if pain occurs before 04am. If pain occurs after 04am she is to have Panadol 1g i.v. consider Buscopan or Valium first please. 16 March 2007 18716/3/07, 07.45 Nursing; pt had a very settled night. Didn't require any pain relief. Has not voided overnight. 18816/3/07, 10.20 Nursing - pt sponged in bed with daughter in attendance. Patient was then turned on side - other daughter then came into room stated she wanted patient on back. I stated that as pt is now on side (continued page 37) perhaps we could leave her as is for a while - she stated "no" as Father was coming to give mass she wanted her on her back same attended. Incontinence pad was changed - same was not wet but daughter picked up pad a scratched it and sniffed it and said it was wet - explained to daughter the writing on the back of pad is normally smudged when the pt is wet so to nursing staff's knowledge pt has not passed urine overnight - s/c fluids remain in situ. 189Page 37, 16/3/07, 11.30 S/B Coupe/Biscoe, patient looks good, comfortable, has had a small amount of yoghurt & is tolerating so far, pall care in attendance, 19016/3/07, 12.30, Palliative Care - consult only, spoke with Elizabeth, Leo & Ralph. Deirdre stayed with her mother & has requested to speak with me next week. I explained the Palliative Care Services & asked her where he would like Helen cared for- Helen has had an ACAT (continued page 38) assessment for St Michaels & Leo would like her to be transferred if it is appropriate and a bed is available - he has said that he does not want her to come home. 191Discussion:- At TP108 of 11 May Mr Lane was asked by Deidre:- So why was not mum, if she was in the final stages of life and needed palliative care, not sent to the specialised palliative care unit? He replied:- She wasn't in final stages of life in that regard where she would have been, say, admitted to St Vincent's. It was considered, and this - the experts - shall we say the lady from St Vincent's, the St Joseph's I think we call it, made the assessment that she would be much better in a situation in Casino, and if you recall there again the staff at Casino made considerable effort, whatever, care to provide that palliative care in terms of providing accommodation, if that's the word, for you and Elizabeth to stay with your mother". This exchange is used by the plaintiffs to support an assertion that it was clear the palliative care nurse did not consider Mrs Lane to be dying. (PS par 147). Even if that was a supportable proposition, which it is not, it is an isolated incident in a situation where the whole of what was occurring needs to be looked at not each individual event, as if each event proved what the patient's overall position was. 19216/3/07, 14.30, Discharge Planning - in contact with St Michaels N/H they take respite cases but there are no available beds today. Helen is on their books for placement. 19316/3/07, 15.40 Nursing- pt has not voided - contacted Amber Biscoe, stated should have catheter. Explained that family would only have this as a last option and would she come and explain this to family. Attempted to reposition patient today - family requested we wait for Deirdre to come so waited for her and then pt repositioned - Deirdre also stated they have been giving pt small amounts of food by (indecipherable) her mouth. Offered pt pain relief via Leo her husband who refused same. 194Page 39,16/3/07, 16.30, Biscoe/Coupe, discussed Urinary Output with family. Unclear, but seems very poor today. Explained inadequate. Explained retention → distress. Patient appeared comfortable. ? Mild abdo tenderness - Advised only option is re insert catheter. Family agreed they will ask for this if patient becomes distressed. 19516/3/07, 22.10, Family in attendance and attending to cares turned x1 by nursing staff as requested. Sat on side off bed. Very small amount of very concentrated urine. IDC left out at this stage. Pt resting comfortably. Not required any analgesia. Family giving pt small amount of yoghurt + ice. 17 March 2007 (St Patrick's Day) 19617/3/07, 06.40 Nursing: settled night. Daughters were quite happy to leave her, if she's comfortable. Passed large amount of urine. 197Page 40, 17/3/07, 09.30, Nursing: repositioned pt into sitting undecipherable position - daughter wishes to give her some Sustagen - so I gave them thickened fluids from rehab. Explained about correct feeding and making sure pt has swallowed and not to give any oral fluids if pt not fairly alert. Analgesia was withheld by daughters request. Bed sponge given - pt voided well. 19817/3/07, 14.00, Add-tt: analgesia offered, but pt seems quiet settled after re positioning onto left side. IU S/C still in situ - have reduced to 30 mls as the abdomen seemed a little distended. Leo - husband has indicated that he only wishes pt to move to Casino - not home. NFR order needs to be updated. 19917/3/07, 22.00, pt distressed when position changes, voided, scant amount, sat up on one occasion so family could feed her. 18 March 2007 20018/3/07, 04.20, Nursing: pt settled, pt very wet. 20118/3/07, 14.00, sponged in bed, voided x2 cared for by relatives. 202Page 41, 18/3/07, 16.00, pt repositioned, and found that pts legs seem to be the most troubling spoke with Leo - husband - and he agreed to allow Panadol per rectum, as her daughter was wanting another enema. 20322.10, daughters wished to try more thickened fluids - to no avail. Leo is most concerned about taking her to Casino Hospital. 19 March 2007 20419/3/07, 06.50, Nursing on 1st round patient appeared "alert" enough to be listening to conversations - eye contact was direct and purposeful. I explained to her daughter that at the present moment I did not feel she was in a critical condition .... That I would not be popping my head in the door to "check on her" family happy for the mum to get a descent sleep. Voiding in to nappy +++ and pressure care was attended. 205Page 42, 19/3/07, 11.00, S/B Coupe/Burgess, family present. Pt sleeping family states pt comfortable appears so. Urine output good. Pt's condition grossly unchanged. Limited examination. Abdo distended. Pt groans when palpated. Daughters requesting "blood tests" will discuss at meeting. Leo (husband) wishing pt to go to "Casino if anywhere" - i.e. not St Michaels. Leo (in presence of son) stated desire for "no intervention whatsoever" including no CPR. 20619/3/07, 14.45, pt washed in bed, family in attendance. THE STAFF AND FAMILY CONFERENCE 207Page 43, 19/3/07, 15.15, Family conference, Dr Paul Laird, Dr Nicholas Coupe, Jill (social worker), Theo (brother in law), Mary (sister), Leo (husband), Ralph (son), Deirdre (daughter primary career), Elizabeth (daughter), Judy (discharge planner), Kirsten (nun), Luke Burgess (pre-intern-scribe). Next of kin: Leo Lane (husband), medical issues - long term care at LBH, or other hospital inappropriate. Nursing home or home care more appropriate. - feeding, - investigations and interventions. 208Family agrees long term care @ LBH is not appropriate. Deirdre requesting St Vincent's Hospital in preference to Casino states this as pts wish. Family made aware that pt would not be transferred while unstable. 209Family made aware of bed shortage in LBH and that if her single room is required on clinical grounds for another patient, she may be moved to a 4 bed room, and that overnight stay would then be inappropriate (continued page 44) Leo believes that a private room at Casino Hospital is appropriate. 210Pt has now been 9/7 without food intake Dr Laird made family aware long-term SC fluids is inappropriate. 4 options: oral only with risk of aspiration; NG tube; PEG tube: or nil oral intake, nil SC/IV fluids. Pros and cons of each option discussed. Family aware that no feeding and no fluids void result in death in a matter of weeks. 211Ralph states that family home is not set up to accommodate pt in her present condition if she were for care at home. 212Family made aware that intervention ion the event of acute deterioration is inappropriate and they agree as such. 213Pt's current medical condition discussed. Pt has cerebral atrophy on CT Scan suggesting dementia, with presumed hypoxic brain injury 2° to seizure prior to presentation. 214Ralph describes pts condition and severe decline in self care to the point of total dependence over the last 10 months to the day of events leading to presentation. Family aware that pt is unlikely to return even in this limited capacity. 215Analgesia discussed as appropriate for comfort. Conflict within family regarding pts premorbid (continued page 45) functioning and quality of life. Deirdre believes QOL and level of functioning as higher then previously described. Leo agreed with description given by Ralph (on previous page). Deirdre expresses desire for pt to return home for care. Leo does not agree with this view, and does not wish for pt to be cared for at home at the present time. He wishes for pt to be at Casino Hospital (if not LBH) for a period, with care at home during final stages if appropriate. 216Leo states pt would not want artificial feeding, and he does not want feeding for patient. 217Leo wishes for pts t/f to Casino with continued SC fluids. Conflict with Deirdre over this issue. 218Deirdre wants clinical psychologist r/v of pt and is told in clear terms that this is inappropriate, and is not an option in pt's care. 219Deirdre wants to know "what are mummy's rights in this situation" and is told that Leo as pt's next of kin makes decisions regarding medical care, because pt cannot communicate. (Continued on page 46) Outcomes -t/f to Casino Hospital - pt not for NG or PEG feeding SC fluids to continue - pt is not for intervention if her condition worsens. Above points as directed by Leo Lane, pt's next of kin. End conference 17.10hours. 220[page 46]. 19/3/07, 22.00, Nursing: daughters Deirdre & Elizabeth present most of shift & quite demanding. Washed pt, gave PAC & when cleaning moth pt had gag reflex. Deirdre then assumed she could feed her mother & I strongly advised against same suggested further speech path R/V. Referral made to Ann Moehead to R/V pt. Incontinent of urine. Pt does not appear to be in any pain, I believe her verbalisations are more a reaction to her daughters. 221Discussion:- As can be seen from the above, the meeting on the 19 March was a crucial one in regard to the continued care of Mrs Lane. In my view this meeting fully complied with any requirements of the ELCDMG. It is clear that more intrusive methods of nutrition such as naso-gastric tube and PEG tube were discussed and abandoned as being inappropriate. Dr Laird discussed the long term effects of S/C fluids and attempted oral intakes. The ultimate decision rested with Mr Lane who decided to continue S/C fluids with a transfer to Casino and eventual return home in the final stages if that was possible. I do not accept that he did not fully understand what was happening or that he was mislead in any way at that meeting, as has been suggested in the plaintiffs submissions a number of times (eg see PS1 under heading OPTIONS @ P38). He was Mrs Lanes next of kin and legal guardian and had medical consent from Helen as to any treatment since 2005. Whilst undoubtedly a terrible and emotional time for him and the family, I do not think his mental capacity to make an appropriate decision was in any way affected. 222The notes of this meeting indicate that "Family aware that no feeding and no fluids would result in death in a matter of weeks". At PS1 (par 165 et seq.) it is stated that Mr Lane was clearly "not advised that no food, regardless of fluids, would result in starvation in two weeks. Whether it was starvation or pneumonia is uncertain, as Professor Ehrlich stated there was no evidence of pneumonia in the medical records". These propositions are contradicted by their own submission at par 164 but in any event there is no evidence from anyone that Mrs Lane would starve to death in two weeks without food. Apart from that, the expert evidence suggests that parenteral, PEG or N/G feeding of a patient in Mrs Lane's condition was inappropriate. 223I have been provided with three reports from Dr Raftos dated 10 Oct 2008 - to the NSW Coroner, the 2 Sept 2011 and 7 March 2012 - to the defendant. For the first two reports Dr Raftos basically had the clinical notes from the two hospitals but by the last report he also had a significant amount of background material as to Mrs Lane's pre morbid medical condition. Dr Raftos is an acknowledged expert in emergency medicine. It was his opinion that "Mrs Lane had been disabled by a severe form of dementia, Parkinson's dementia, since at least 2005". Having read the reports of Dr Boyce, Dr Fairfull-Smith and Robyn Gordon, it was his opinion that "All of this documentation indicates that Mrs Lane had severe dementia along with Parkinson's disease in 2005. In 2005 she was unable to communicate verbally, had poor mobility, and had substantially impaired cognition. Mr Leo Lane and their sons told hospital staff that her condition had deteriorated significantly in the six months before March 2007, and particularly in the preceding one month, to the extent that she needed assistance with all of the activities of daily life. This relatively rapid decline indicated that Mrs Lane was close to death". He then continued "It is inappropriate and medically unethical to prolong life when there is no likelihood of a meaningful recovery. Mrs Lane's had had a recent rapid decline in a chronic dementing process. In this context, it would have been inappropriate and unethical to treat acute bacterial infection with antibiotics to prolong her life". 224He was asked to express an opinion about the viability of feeding Mrs Lane either orally, by naso-gastric tube, by Percutaneous Endoscopic Gastrostomy (PEG) or by any other means? He advised again that "It is inappropriate and medically unethical to prolong life when there is no likelihood of a meaningful recovery. Mrs Lane had had a recent rapid decline in a chronic dementing process. In this context, it would have been inappropriate and unethical to prolong her life by artificial nutrition". 225The defendant also called another expert Dr John Obeid whose speciality is geriatric medicine. He provided two reports dated 18 Sept 2010 and 12 March 2012. The second report was made with the advantage of a large amount of background material in regard to Mrs Lane's pre-morbid condition. 226Whilst I hesitate to personalise during the course of a judgement, I am aware, from my own experience with close relatives, that the course of treatment of Mrs Lane at the LBH was in use at St Vincent's and Royal Prince Alfred Hospitals in Sydney well prior to 1998 for patients who were in a similar age and state to that of Mrs Lane. 227It is submitted that the hospital was negligent in not calling in a number of specialists such as a psycho-geriatric nurse, a geriatrician and a psychologist. It is for the plaintiffs to establish that the hospitals should have done this and further, if they had, it would have made a difference to their mother's outcome. Neither proposition has been proved and it is difficult to see what difference it would have made in any event. Mrs Lane's situation was neither unusual nor uncommon amongst the elderly. Hers was not a situation that required or could justify intervention at any level higher than that which she received. The plaintiffs have to establish that, but for the actions or inactions of the defendants, Mrs Lane would not have died and that has just not happened. 228I note that in his reports Dr Obeid says inter alia that "A neurological opinion would not have been of any value in the management of the patient. A review by a geriatrician would have been worthwhile as patients such as Mrs Lane are best managed by geriatricians. Having said this, I do not have any objection to the general management approach adopted by the caring team, save the lack of physiotherapy and occupational therapy input. The involvement of a geriatrician and physiotherapy and occupational therapy staff may have been beneficial, but overall the management was appropriate. 229Without downplaying the worthwhile input an Occupational Therapist provides in the multidisciplinary care of geriatric medicine patients, in Mrs Lane's circumstance the absence of specific Occupational Therapy input did not cause any material difference to her care or outcome. Further, and again without downplaying the worthwhile input a Physiotherapist provides in the multidisciplinary care of geriatric medicine patients, in Mrs Lane's circumstance the absence of specific PT input did not cause any material difference to her care or outcome. This is because: (a) Her general level of ill-health made mobilisation an impossibility at any stage of her admission, (b) Nursing staff appear to have been using appropriate techniques to minimise respiratory congestion such as positioning and suctioning. It is unlikely physiotherapy input would have provided additional expertise. 230My opinion that no material difference would have been made had a geriatrician been involved in her case is based on the assumption that there was no other significant or easily-reversible pathology present and not identified and that the correct diagnoses were made". 231Under a heading "MEETING" (PS P30 et seq & P40 et seq) the plaintiffs raise a number of issues in regard to feeding Mrs Lane either orally or via an I/V drip. Some of the suggestions are confusing. What is clear is that the plaintiffs made attempts to feed Mrs Lane in the days before the meeting. However given their evidence and what is revealed in the notes, there is nothing before me to suggest that Mrs Lane had the capacity to sustain whatever was offered to her by them in any meaningful way. Earlier, on 19th March, the nursing notes indicate an initial good phase for Mrs Lane at 06.50 but at 11.00, when seen with Dr Coupe, she was "grossly unchanged" with distended abdomen and groaning on palpation. 232It is probably fair to say that doctors Burrell, Coupe and Laird had the essential day to day care of Mrs Lanes medical situation while at LBH. I found the three doctors to be impressive witnesses with considerable experience in treating patients like Mrs Lane. Dr Burrell was a staff specialist at LBH and Dr Coupe a Registrar at the time. He is now in oncology care at Liverpool Hospital. Dr Senerviratne is and was an RMO at LBH and saw Mrs Lane on only one occasion on 11 March. Dr Laird was at the time a a VMO but had been a staff specialist in general medicine and is now Director of Medicine at Rockhampton Hospital. His involvement with Mrs Lane's treatment became more involved when Dr Burrell went on leave on 14 March. I am quite satisfied that all medical and other staff have done their best, with the assistance of the clinical notes and other records, to recollect events which were over five years old when they gave evidence. 233Despite trenchant criticism of their conduct by the plaintiffs in cross examination, I was impressed with the care and compassion they demonstrated towards the plaintiffs, even though disagreeing with many of the plaintiffs' propositions regarding Helen's treatment. 234On the issue of liability, the plaintiffs called one expert, Prof Ehrlich who provided reports dated 16 April 2010 and 11 May 2010 (Ex 29). It was possibly his comment at the end of the first report that fuelled the current proceedings where he said "I developed the view that Mrs Lane was put on an euthanasia course, whereas prolonging her life would appear to have been perfectly reasonable by at least effective palliative measures, if not active treatment of her final illness". For a medical professional to say something like that without knowing all the circumstances is in my view reprehensible and irresponsible. 235He felt that Mrs Lane's treatment should have been something between either active medical treatment, intravenous antibiotic therapy, vigorous chest physiotherapy and a concerted effort to 'cure' existing illnesses or 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. The report contains some inaccuracies such as his observation that I could find no record in her files of her receiving antibacterial or antibiotic therapy. In fact Mrs Lane did receive such therapy initially until it was discontinued as indicated above. He also said at page 2 that there can be a fine line between avoiding major invasive intervention in a frail old individual but it is widely accepted that simple treatments, and certainly maintenance of nutrition, should be offered to the end. This does not seem to have occurred in the case of Mrs Lane who neither received antibiotics for her major infections nor was she provided with nutrition finally. Again that is in fact not the case and is not reflective of what appears in the clinical notes. Prof Ehrlich formed a view that there was an ongoing diagnosis of broncho-pneumonia which was not treated and for which condition the administration of morphine was "very odd indeed" as morphine is a respiratory suppressant. In fact the notes clearly indicate that antibiotics were ceased when her pathology was negative and the use of morphine was never done in a situation of Mrs Lane suffering from any sort of respiratory disorder nor a UTI. 236In evidence he confirmed what he had put in his report that precise diagnoses were not possible at such distance that is the distance he found himself, looking at it and with the information largely limited to hospital records but that it appeared that 'the beginning of the end' was on 10 March when Mrs Lane had some convulsions. The beginning of the end he related to Mrs Lane's final illness. He agreed that the frailer Mrs Lane had been before 10 March, the more guarded her prognosis. He was unaware of the wealth of material now available as to that situation. He agreed that if the reports and observations put to him in cross-examination were true, Mrs Lane was indeed a very frail old lady with both cognitive and physical difficulties. TP 43). 237At TP 49/50 he conceded he was at a disadvantage because he didn't get the chance to observe Mrs Lane at hospital on at least a daily basis and that being able to do so placed a clinician at a significant advantage over one coming along later. At TP 67/68 in re-examination by Elizabeth, Prof Ehrlich was asked if he would you agree that there was a confused diagnosis, a confused management and a confused prognosis to which he responded No. I don't think I can agree with that. I don't know that ..(not transcribable).. was confused. What I know is that it wasn't recorded. Q. Recorded. Unclear perhaps, an unclear diagnosis? A. It wasn't recorded, there was no diagnosis and evidence of why the diagnosis was achieved and there's no treatment plan. It was not recorded. Obviously there was a treatment plan, the treatment plan was to do nothing. There was a treatment plan but that was actually written down. 238I found Prof Ehrlich's evidence to be less than satisfactory. In many instances he was proceeding on assumed hypotheses that were not in fact what was recorded in the clinical notes which he had access to. That is particularly obvious in regard to the issue of pneumonia and antibiotics, which seemed to originate from the death certificate he had access to which did record pneumonia as one of the causes of death. Interestingly he said at TP 54 that "people fill in death certificates very often without - just put in the most plausible word, it doesn't necessarily be related to truth. I certainly don't know what the lady died of. She may have had pneumonia, she may not have". 239Even if I was prepared to accept Prof Ehrlich's opinion as to the inadequacy of Mrs Lane's treatment, his is only one view of what is appropriate peer professional conduct and I have evidence of other peer professional conduct that is in contra-indication to that view. In other words, there is a widely accepted view that the conduct of the defendant was appropriate professional conduct even though some may disagree with it. In those circumstances, the requirements of s5O of the CLA have not been met. 240In fact two death certificates were issued for Mrs Lane (Ex 4). The first, on 24 March 2007 by Dr Beek recorded the causes of death as being bronchostatic pneumonia (days), bedfast (weeks), anorexia (weeks), alzheimer's disease (years) and dementia (years) with another significant condition of epileptic seizure (two weeks ago). 241After intervention by the plaintiffs through the NSW Coroner, a second certificate was issued by Dr Beek on 30 April 2009 which deleted the references to alzheimer's and dementia. 242In November 2007 a Ms J Grainger wrote a lengthy letter to the Coroner on behalf of the plaintiffs setting out her understanding of Mrs Lane's treatment and her opinion as to the inadequacy of that treatment. (PTB 1 Pp129-132) Needless to say this letter was critical of the defendant. By March 2008, the Coroner declined to intervene. There then followed lengthy correspondence, which included a report from Dr J Raftos, a specialist in emergency medicine, in October 2008. After more correspondence and an approach by Mr P West, an officer of the Coroners Court, to Dr Beek, the latter agreed to amend the original certificate as indicated above and wrote on 1 May 2009 (PTB 1 P172) that "I trust that this amended death certificate will assist Mr Leo Lane and his family, whom I have known for the past 29 years, with their grieving process." 243This amended certificate was still unsatisfactory to the plaintiffs who conducted further lengthy correspondence with the Coroner who declined to act further and closed the matter. In the circumstances, and having regard to what Prof Ehrlich said above, one would be concerned at the value of this second certificate which was clearly obtained with a view to removing references to dementia and alzheimer's and presumably to persuade the Coroner to initiate an investigation into Mrs Lane's death. The fact that these pre-existing illnesses were removed from the death certificate does not equate to proof that Mrs Lane did not in fact suffer from either or both as all the independent medical evidence seems to suggest. (PS1 Par 167 et seq). 244Except by way of noting the above correspondence, I have not had regard to the Coronial material as it is irrelevant to any matter I have had to decide. Likewise, for the same reason, I have not had regard to the plaintiffs' tendered material relevant to their involvement with the Garling Special Commission of Inquiry into Acute Hospital Care which includes correspondence, newspaper articles, submissions and transcript. 20 March 2007 24520/3/07, 05.20 settled night. 24620/3/07, 08.50, S/B Laird/ Coupe, family present. Pt sleeping, unresponsive, pt's condition stable, unchanged. P - t/f to Casino, under Dr Andrew Watts . - continue to sc fluids - family will continue attempting oral feeding. Page 47, Helen Lane No Cardio - Pulmonary Resuscitation Order Patient's diagnosis and prognosis:- - vascular dementia - new onset seizure. Person responsible for the patient:- Husband. Discussion with:- (Page 48), the patient's spouse, the patient's family. Reason(s) for the No Cardiopulmonary Resuscitation Order:_ poor quality of day to day life - increasing vascular dementia. 247Page 49, 20/307, 10.10, Bed sponge given and responded, no bed available at Casino today. 24820/3/07, 15.30, pt cleaned and repositioned. Daughters have requested to sit pt out of bed - I have disagreed due to pt's lack of response. Spoke to husband Leo - who is in total agreement with my decision. 24920/3/07, 16.30, Social Worker 2329, Brief r/v - Prior to referrals to Allied Health or Specialist staff pls note entry family conference dated 19/3/07. Should family be insistent re referral pls discuss with Dr Laird - noted daughter Deirdre putting vegemite into pt's mouth. 250Discussion:- At PS pars 151/152 the plaintiffs state:- On Monday 19th March 2007 at 22.00hrs a CNS, Clinical Nurse Specialist D9 T84 26-27, from the pain management team, Ms Stephanie Paggotto made a referral to Ms Anne Moehead to review Mrs Lane. Dr Laird acknowledged Ms Paggotto did not need to gain his approval if she thought the patient warranted an assessment. Even though this referral was made by a clinical nurse specialist following observation of Mrs Lane and discussions with Mrs Lane's daughter/carer, and another daughter, LBH 19th March 22.00hrs CNS Mrs Lane was denied assessment. The referral was not followed through with the reason being there were to be no allied health care referrals as per family conference and if family insisted to refer them to Dr Laird. 251This needs to be looked at in light of a passage of transcript (TP 84 21 Jun 2012) where Dr Coupe is being asked questions by Elizabeth. I set that out below:- Q. At 2200 hours. Can I just get you to read that entry, please, doctor? A. It's not - it's by a nurse, Elizabeth. Q. Yes? A. It's not by a pain specialist. It's CNS at the end which is clinical nurse specialist but it's not - it wouldn't - there was no pain service that would have been available at 10 o'clock on any night. Q. So if this did happen to be somebody from a pain management team - I guess if I just get you to read it out, if that's all right, doctor? HIS HONOUR: Well, no, we can read it, it's quite clear. What do you want to ask him about? WITNESS: Yeah, which part in particular? PLAINTIFF E LANE Q. I guess it was in reference to the pain, the third-last line, "Patient does not-- A. "Does not appear to be in any pain." Q. Yes. A. "I believe her verbalisation is more of a reaction." Q. Yes. A. Mm-hmm. Q. So if that was from a pain specialist person that would be a fairly-- A. Yeah, Elizabeth, that's relevant at 2200 on the 19th, it's not relevant to 2300 or 2400 or anytime during the next day. It's relevant for that point in time. Q. So if I said to you that the person that wrote - and sorry, and if you read the entry underneath then-- A. "A settled night." Q. No, sorry, keep going down to S/B Coupe? A. That's me, yeah. Q. And it's the third line under that, if you could just read that? A. Yep, "Patient family mentioned visit by Stephanie, pain team." Q. Yes, so this Stephanie is a woman called Stephanie Pergoto, she's CNS acute pain, she's part of the pain management team? A. Mm-hmm. Q. So her assessment of Mrs Lane on that particular evening it is quite possible that the verbalisations that we've been seeing from my mother prior to this could very well not have been pain? A. It may be Elizabeth, but did your mother receive anymore morphine beyond that point because I'm just trying to see what you're getting-- Q. No, she hadn't received morphine since the 15th-- A. So then there-- Q. So this is as far as the 19th, she hadn't received morphine, she was still verbalising but this expert from the pain management team had recognised that the verbalisations weren't pain, they were more a reaction to her daughters-- A. And no further morphine was given beyond that time-- Q. No, or before that-- A. So - which would be appropriate. Q. So - and before that as well too. But my point is that Stephanie Pergoto - the pain management expert was saying that her verbalisations are a reaction to her daughters, is it possible that some of those verbalisations prior to this, when it was thought to be pain, may have actually been just other ways of trying to express herself as well, is it possible? A. May have, may not. If you're trying to say that do I think they're meaningful verbalisations, no. Q. I guess my point is would a more accurate assessment of her pain perhaps sorted out what was really going on with Mrs Lane? A. I don't think it would have changed anything. Q. So if it had been discovered earlier on that it was actually pain, the need for morphine may have perhaps not happened? A. Possibly. But stressing the point the dose - the amount of morphine that was given in your mum's situation is absolutely minimal, absolute minimal. Morphine lasts on average four hours once it's given. The morphine given five days ago or whatever is not going to be causing problems on the 19th. Q. Yes, I understand that. And I'm not suggesting that the 19th had anything to do with the morphine? A. Sure. Q. What my suggestion here is is that it would have been in Mrs Lane's best interest to have had a more specialised pain management person considering that she had a communication disability, would you agree with that? A. I think if we had this assessment - I suppose what you're alluding to, she may have had a couple of doses of morphine that she may not have needed. If we lived in an ideal world and we could have those assessments done at the drop of a hat, then that would make everybody's life much easier but unfortunately we don't. Elizabeth, in this situation it is better to err on the side of treating someone with comfort rather than making assumptions and not treating them. 252As can be seen from the above clinical note and that excerpt from the transcript, the plaintiffs submission is misguided to say the least. The Social Worker did not say there were to be no allied professional referrals and Dr Coupe in his evidence makes it quite clear why the medical team acted in the way it did. It is for the plaintiffs to establish that the failure to do something was not only negligent but that it would have resulted in a more favourable outcome for Mrs Lane. 253Page 50. 20/3/07, 21.40, pt groans when moved for PAC, but otherwise settled. Husband and son in attendance. 21 March 2007 25421/3/07, 04.00 settled night. 25521/3/07, 11.45, Biscoe - called, Dr Jurrian Beek at Casino , will accept care for Mrs Lane. 25621/3/07, 11.30, Pt T'port , pt. Assessed for t/fer to Casino will require nurse escort for comfort. Due to periods of apnoea of approx 30-45 secs we will re-assess again in 1.5 hrs. time, .. this apnoea is not uncommon over last few days, however I have concerns about developing pulmonary oedema en route. Pt will be given O2 to relieve distress but no further intervention as stated in doctors orders and outcome from family conference. Daughter would like to accompany pt. Request experienced RN for escort pls. 257Page 51 21/3/07, 12.55 S/B Biscoe/ Burgess, patient comfortable. Family happy with plans for t/f to Casino with RN, 21/307, 13.20 Nursing - comfortable morning. PAC and wash attended with assistance of daughters. Nil analgesia required. Subcut fluids stopped for transfer as per Dr Biscoe. Family in attendance throughout day. 25813.40 Nursing - pt left for Casino Hospital. Casino Hospital - 22 March 2007 259Page 53, 22/3/07, 13.00, Social Worker, Mr Lane had agreed for Mrs Lane to be transferred to Casino Hospital - if after a week and Mrs Lane surviving - agreed plans for Mrs Lane to die at home and be cared for by daughters with supports in place. 260Page 110, North Coast Area Health Service - Admission Form:- Casino Memorial Hospital, Altzheimers D (?), bronchostatic pneumonia Beek, (24,3/07). 261Page 112, Patient Care Plan date: 21/3/07, unconscious, full assist, NBM, date: 22/3/07, semi-conscious, full assist, NBM, date: 23/3/07 semi-conscious, full assist NBM. 262Page 114, 21/3/07, 17.00, patient transferred from LBH for palliative care. Has been having sc fluids at 60mls/ hr. Dr King contacted for order for same however family not wishing to have it started for a couple of hours to allow pt to rest following move from Lismore Dr King will review pt this evening as Dr Beek unavailable. 26321/3/07, 20.45, s/c fluids commenced running at 60 mls/hr PAC attended , family remains in attendance during evening. 26421/3/07, palliative care patient transferred back from LBH. Writings for subcut fluids PRN morphine NFR. Husband understanding and co-operative but one of two daughters apparently a little difficult - appear unable to accept imminent decease of mother. Bruce King. 22 March 2007 265Page 115, 22/3/07, 05.10, awake but not really responsive to questions etc. daughters asking for pts gag to be reassessed today if possible. 26622/3/07, -asleep, -? poor feeding - confusing picture - had yoghurt 48 hrs ago- not catheterised - daughter NOT keen on the NH option - speech pathologist to advise - family conference might be of benefit. 267Page 116, 22/3/07, 09.35, family meeting with Dr Beek in ward at 18.00 hrs 23/3/07. 26822/3/07, 12.00 Speech Pathologist:- pt previously assessed by SP @ LBH and nil by mouth recommended due to limited levels of alertness and responsiveness. Family required review by SP at Casino Hospital. - pt was awake initially but did not make eye contact did not respond to verbal or tactile stimulation for OMA (Oro Motor Assessment) did not show any spontaneous swallows and fell asleep after 5 minutes - had long discussion with family members and N.U.M. present - lots of issues and disagreement over past weeks. Bottom-line what SP role is concerned patient is at high risk of aspiration in current condition - thus recommend Nil By Mouth . SP explained risk of aspiration to family as they seemed determined to feed her. If/when pt becomes more alert, family members may notify staff - if staff feel level of alertness is sufficient for speech path review staff to contact me on ext 604 for a review. nursing staff to continue with oral hygiene. 269Discussion:- This was the second time that Mrs Lane was assessed by a Speech Pathologist in a different hospital to the first assessment approximately a week earlier. Ms Lucks came to the same conclusion as to nil by mouth as did her compatriot Ms Kostal. There is no suggestion that they colluded with each other in any way and I accept that the two assessments were at arms length and independent. It is therefore difficult to accept that these two professionals got the situation so wrong and were so ignorant of what is required to be done in the circumstances of a patient like Mrs Lane that they failed to take that situation into account. After all, it wasn't as if they were presented with a novel or unusual situation and their evidence indicates that they are required to deal with a variety of patients in dramatically divergent medical situations. 270At PS par 141 the following statement was made:- But no help was forthcoming for the decision Mr Lane had made to continue with attempts to oral feed. I.e., no dextrose, vitamins or minerals, electrolytes in the intravenous drip to make her feel more like eating; no antibiotics to reduce fever/sepsis to make her feel like eating; no increase in hydration to make her feel more like eating; no further talk of s/p review to show staff or doctors best way to facilitate eating; no qualified staff provided to assist Mrs Lane to eat, instead her daughters without expertise to do this. 271Unfortunately there is no evidence to support any of these propositions as being either appropriate in the circumstances or likely to effect the outcome of Mrs Lane's condition. If Mrs Lane was able to spontaneously swallow food to any meaningful degree, I am sure the plaintiffs would have observed this and drawn it to the attention of staff but the clinical notes reveal rare and only apparently brief such attempts which obviously were unable to be sustained. 272I do not accept that there is any support for the proposition that either Speech Pathologist did not undertake their work in a professional manner. There has been no expert evidence tendered to suggest that their conduct was negligent or that their conclusions were inappropriate. One can only wonder at how the plaintiffs would have reacted if their mother had aspirated what she was being given by them and subsequently suffered fatal consequences. 273At TP p14 on 21 June 2007, Dr Beek who had been Mrs Lane's treating doctor for many, many years and who also oversaw Mrs Lane's management during her second admission to CDMH was asked by Elizabeth:- What were the signs that she was at the end of life stage? He replied:- Well, comatose, ventilator, no longer alert, sleeping, and it got worse. Restlessness at times, low oxygen levels. We did a POQ on her and it came back at 94%. We gave her oxygen.. (not transcribable).. bowels, rattly chest, poor respiratory sounds, at one stage, a fever. You would have to say, in common parlance, generally a poor outlook. 274Page 117, 22/3/07, 12.45, daughters called me to see patient who had become more alert. Mrs Lane certainly awake and slowly following nurses with her eyes had only one obvious response of recognition. One reflex swallow observed. Still awake after 5 mins. She is not alert enough for speech pathologist review at present. 27522/3/07, 15.00 h S/B Dr Beek, daughters in attendance. Sponged in bed after family discussed issue of showering patient may be too distressing and unsafe for patient. Daughters instructed on leg and arm gentle exercising in bed. 27622/3/07, 20.40, pt resting quietly during evening not alert enough during evening for oral intake however daughter using ice on lips. Family in attendance throughout evening. 23 March 2007 277Page 118, 23/3/07, 04.30 Nursing, slept most of night. Breathing laboured Serts (?) 93% Rt O2 applied at daughters request Febrile 88°. 27823/3/07, 8.30 am, long talk with daughters Elizabeth and Deirdre keen on nutrition - long talk with Ralph and father (Leo) not keen on intervention other than subcut fluids - risks and benefits outlined - general outlook explained - Helen - seems to be asleep - was febrile - not responding to spoken commands. (illegible) family discussed as to Rx - Deidre said that complaints to the HIC had been put in place about failure to Rx - Father the next of kin - advised that parenteral nutrition trial was a reasonable short term option - "Leo" not keen with this option. 279Discussion:- Note that "Parenteral" is defined in the Gould Medical Dictionary (4th Ed) as "Outside the intestine; not via the alimentary tract, as a subcutaneous, intravenous, intramuscular or intrasternal injection. I understand the clinical note to mean that the staff advised the family that parenteral nutrition was a reasonable short term option but that Mr Lane declined the option. Dr Obeid did not agree that parenteral feeding was appropriate because of possible complications. I note that Mrs Lane passed away the following afternoon. 280Page 119, 23/3/07, 11.12 long discussion with Deirdre, Elizabeth, Ralph and Leo as outlined by Dr Beek no social worker available today to assist the family to reach consensus. I've obtained the phone number for the public guardian in case Leo wishes to confirm his rights and responsibilities as next of kin. 28123/3/07, 12.48, when I went to give Leo the guardianship board number he was already aware of it. He and son Ralph had just been to see their solicitor, Frank Hannigan, again to ensure that the paperwork was in place. Ralph added that his father has enduring guardianship. I will ask that they bring the paperwork in for the meeting tonight. 28223/3/07, 14.00, sponged in bed this am and hair washed with daughters help. Daughter didn't want her dentures removed at this time (Page 120), 23/3/07, 14.00 because she said she would do it later. At one stage Helen said "where's Leo" to her daughter Elizabeth. 23/3/07, Addit, Helen has been awake at times but not alert enough to drink. 28323/3/07, 21.15, long discussion with Dr Beek, Ralph, Robert, myself, Andrew Adams, Leo Lane and Elizabeth commencing at 2000 hrs. At 2055hrs, Robert, Ralph and Leo left and Deidre joined us (see Dr Beek's notes). Mr Lane has enduring guardianship of Helen and has the final say in all medical matters. Outcome of meeting:- no assisted nutrition regime. keep patient comfortable. Deirdre will use alternative therapies massage etc in an endeavour to ease any pain or (continued page 121) distress. All members of the family are to have equal visiting rights in private if requested and to be respectful towards each other. this was requested by Ralph and John and endorsed by Leo., under no circumstances is morphine to be given at any time. The family members present all agreed to this. 284Page 121, 23/3/07, 21.25, condition remains unchanged 2/24 PAC attended. Daughter requested at one time that only to wash Helen around genital area, change incontinent pad and they would do rest of areas. Having family prayer session. 24 March 2007 28524/3/07, 0800, condition much the same. 286Page 122, 24/3/07, 10 am, - "asleep" - resp rate elevated - ?not responding to spoken commands - ? febrile - generally poor outlook - follow discussion with family, suggest that "IVI" line be discontinued. - seems to be not in distress. 28724/3/07, 12/05 Helens condition remains unchanged, sponged in bed, s/c infusion ceased and cannulae removed as per orders. Helen has quite moist respiratory sounds. Daughter concerned (continued page 123) Helen appears comfortable although non-responsive, incontinent urine. 288Page 123, 24/3/07, 13.40 hrs, daughters concerned re: "moist breath sounds rattly chest". Requested that pt be repositioned same attended. Daughters reassured. Reassured and explained that Helen appeared comfortable and in no distress. Discussed that on call MO could review and assess if they wanted. Preferred to wait and see. 28924/3/07, 15.30, Nursing, staff called by family advising that mum is about to go. Pt resps slow and shallow - ceased breathing at 15.20 hrs. All family in attendance. Requested time alone. THE VARIOUS SUBMISSIONS 290The plaintiffs made further submissions which I will refer to as PS2. These submissions cover the following headings:- Mrs Lane's pre-morbid health; Mrs Lane's consciousness state while in LBH and CDMH; Diagnosis of Helen Lane, March 2007 - past diagnosis; and Nourishment as being the principal areas in which the defendant failed to act appropriately and was thus negligent. 291 It is somewhat difficult to see what the substantial difference is between PS1 and PS2 except as to phraseology. The principal headings have already been canvassed in PS1 although there are some new twists. 292At PS2 Par 15 it is stated that "a reliable assessment of Mrs. Lane's pre-morbid state was crucially relevant to have obtained, especially in the light of variation between the primary carer and the next of kin. Conclusions about her pre-morbid state majorly impacted on the decisions of the treating team in Lismore Base Hospital and on subsequent management. Failure to obtain highly reliable, available, objective and above all recent expert assessments of her pre-morbid state - contact requested by Dr. Rankin (even before the context of disagreement arose from the primary carer, daughter Deirdre as well as the other daughter Elizabeth) - is a serious breach of the duty of care. Disregard of the recorded instructions of the admitting physician upon attending the patient constitutes a dishevelled(?) and negligent approach to gaining a correct premorbid assessment and to future care based on that assessment". 293I am not sure what are the "recorded instructions" referred to other than "contact requested by Dr Rankin" the reference for which is P19 of the clinical notes (Ex 13) of LBH. Dr Rankin was a consultant medical officer who accompanied Dr Coupe when he saw Mrs Lane on 11 March. However the clinical note at P19 does not make any reference to any instructions. Dr Rankin was not the admitting physician, that was Dr Imhoff and I can see no "instructions" per se in his notes. I do not understand the detail of this submission but I do not accept that the LBH failed to get all the necessary pre and post morbid clinical history that was necessary to properly care for Mrs Lane. 294One area of contention not previously canvassed was Mrs Lane's weight. Having carefully looked at Dr Beek's clinical notes, it seems the earliest recording of her weight was in Oct 2001 being 44.5kgs. Others were Sept 02, 45kgs, and Oct 02, 46kgs. The last was in Sept 2005 being 47.5kgs. What her weight might have been before or after that period is unknown. These measurements were said to dispel observations by Dr Coupe that Mrs Lane looked extremely frail like someone who had had dementia for years because, in effect, her weight had remained constant. Given the lack of regularity of these measurements I do not see that they assist in me assessing the situation in any way. More to the point, they do not derogate from Dr Coupe's assertion as to "frailty", something that Deidre herself was pointing out to Dr Beek prior to 10 March 2007. "Deidre feels Helen becoming frailer" - 26/02/07, and "Helen seems more unsteady and more frail and has deteriorated very quickly" - 23/02/07. "Frailty" and "weight" are different words with different connotations. 295Deidre is referred to on many occasions in submissions as Mrs Lane's "primary carer" as if such a title infers some legal standing over and above anyone else and should have been more taken account of. Mr Lane was the patient's husband, next of kin and legal guardian. Any rational decision he made about his wife's care and treatment would take precedence over the wishes of any other member of the family, including a "primary carer". In fact the only family members who did not agree with Mr Lane's decisions were the plaintiffs. The hospital were obliged to follow Mr Lane's views if there was a conflict and providing his views were rational. 296The PS2 submission re "Consciousness" has already been fairly comprehensively dealt with. Unfortunately some medical and non-medical terms have been used during this case which have resulted in un-necessary excursions into meanings of words and attempts to pin down meanings in a black letter legal context. "Comfort care" and "palliative care" are an example, as is the meaning of "conscious" as opposed to "un-conscious". "Primary carer" is another. What was most relevant in regard to Mrs Lane in that area was her level of alertness, comprehension and communication and in my view there was little doubt on that score. Dr Coupe said that "comfort care is a loose term that doesn't actually have any medical relevance. It's written from time to time, but I really - I don't know the actual definition of comfort care. All care should be comfort." (TP 80). 297This degree of technicality also crept into the plaintiffs expectation of the need for there to have been a definitive diagnosis as to exactly what was wrong with Mrs Lane. Dr Coupe said at TP 52 - "But I've got to stress Elizabeth it's not - the type of dementia isn't really relevant in this situation". That is, it was important that she had dementia, not what type of dementia she had. His statement in effect also applies to discussions of "stroke", "hypoxic brain injury", "alzheimer's disease" etc etc. The hospital staff had before them an elderly woman who could not communicate, who could not eat or help herself, who had had some form of CVA earlier that day and who had a pre-morbid life of poor quality. They had to treat that patient within the constraints of many competing considerations and in accordance with appropriate medical practice. 298I am satisfied that they carried out all necessary and appropriate investigations. That they did is not a guarantee of a definitive diagnosis and it is dishonest of the plaintiffs to selectively quote, without more, Dr Obeid's conclusion that Dr Biscoe's discharge summary from LBH in regard to Mrs Lane was "deficient in its lack of diagnostic information". What in fact Dr Obeid said was that "the discharge summary written by Dr Biscoe, whilst deficient in its lack of diagnostic information, displayed a clear management plan and discussion of the major issues such that an effective transition of care could be undertaken at Casino Hospital". 299In their conclusions of PS2 the plaintiffs submit that:-"North coast area health service had a duty of care towards Mrs. Helen Lane which is not disputed. This duty of care was not fulfilled. Clinical examination is observed by expert witnesses to have been less than normal care in relation to chest auscultation, and never completed in relation to neurological examination. (This is not in fact the case. The substantial expert evidence is that Mrs Lane's carers acted appropriately and provided appropriate care). This is a serious omission in the case of a significant life threatening neurological presentation. It is recorded that Mrs. Lane had minimal improvement on March 11th, not that she had no improvement. Following this documentation of 'minimal improvement clinically... snoring ++' on day two, there is no further functional neurological assessment and no clinical neurological examination or information. (In fact Mrs Lane was neurologically observed throughout her stay with no gross improvement and only occasional indications of her pre-morbid self). The cause of pain that Mrs. Lane was said to be experiencing was not assessed before leaving Emergency, and was not thereafter assessed. Without any documented assessment of her eating ability she was commenced at the time of her admission on a 'Nil By Mouth' course until her death 15 days later. (In fact there were two professional assessments of her swallowing capacity both of which came to the same conclusion that it was not appropriate to attempt feeding orally due to the risk of aspiration). Ongoing saline was administered without regard to nutritive needs, vitamin or mineral deficiencies. Fluid was reduced to dehydrating levels while Mrs. Lane was prohibited oral fluid, Nil By Mouth, "to induce thirst". This was a cruel and negligent treatment decision. (I do not know where this comes from as Mrs Lane received saline solution until her death. No where is there any suggestion that the defendant was withholding liquid "to induce thirst".) Documented hyponatraemia, able to cause drowsiness, was not further investigated or treated or taken into account as a reversible cause of her fluctuating alertness. After one only bag of fluid containing dextrose, calories were entirely removed from all her subsequent fluids. (Dr Obeid explained in detail why the various other methodologies of providing Mrs Lane with nutrition were inappropriate in her condition.) No allied health assistance was provided to her to assist demonstration of improvement or recoverability. (Again, the preponderance of expert evidence suggests that allied health assistance would have made no difference to Mrs Lane's situation.) No precautions 'at all' were taken to prevent Mrs. Lane dying from pneumonia, which is the lead cause of death on her revised death certificate. It was also the first cause of death cited by Dr. Obeid as resulting from two weeks of no nourishment. (I do not accept the death certificates accurately set out the full picture.) 300Diagnostic uncertainty and inconclusion continued on into the discharge summary to Casino Hospital. Hypoxic brain injury first appears documented by a pre-intern on day ten. Thrombosis CVA is barely decipherable on day one, and not confirmed with repeat imaging. Vague and altering diagnosis was dominated by a bleak prognostic assumption. This prognosis was without diagnostic foundation. It was based on assumed untreatability, whatever the diagnosis may have been. The treatment plan to do nothing was adopted when it was decided Mrs. Lane would die. The bleak prognosis became self-determining. (I do not accept this submission. The fact is that Mrs Lane never showed any sustained sign of recovery to her pre-morbid status. The medical picture remained grossly unchanged from admission.) 301The pre-morbid state of Mrs. Lane's health was never obtained from recent expert ACAT assessors, specialists involved, her GP, or even indeed her primary caregiver. Yet poorly ascertained premorbid state conclusions heavily influenced her assumed prognosis and further care. Past health recorded diagnoses are incorrect eg 'vascular dementia', 'Alzheimers' Unprofessional medical notation dismisses the primary caregiver as irrational so her input will not bear further consideration. Mrs. Helen Lane is categorized rather than diagnosed. The guardian is not fully informed of the choices available. He is never offered short term intravenous fluids with vitamins and minerals to prevent Helen's decline for a trial period. The outcomes of each choice that was put to Mr. Lane, which would affect Helen's survival, are not documented and explained. Others' judgment of Helen's 'poor quality of life' becomes a defacto diagnosis determining management. Mr. Lane's view of Mrs. Lane's medical history became her documented history. (I do not accept this submission for reasons already covered. ACAT would have added nothing of value that would have been likely to assist the hospital except to confirm Mrs Lane's poor pre-morbid health. I am satisfied Mr Lane was informed of all appropriate options and understood them.) 302Oral feeding is not 'extraordinary' care. It is not optional but was medically indicated and morally required after Mrs. Lane demonstrated some ability to eat, and tolerate food. Basic measures such as food should be attended to assiduously out of respect for the survival comfort and human dignity of Mrs. Lane. All ordinary means at least should have been used to preserve life, such as food, exercise (physio) and medical care. The reasonable will and legitimate interests of the patient must always be respected. Food and water are natural means of sustaining life. Nutrition and hydration are ordinary and proportionate means of care that were owed to Mrs. Lane particularly after she satisfactorily ate. Starvation, or the effects of starvation, was the only possible outcome as a result of withdrawal and prohibition of nutrition. According to the death certificate, Mrs. Lane did not die of her underlying disease. The effects of starvation were a foreseeable cause of death." (I do not accept this submission is a correct statement of what in fact occurred. Within the submission is a presumption that prior to her admission, Mrs lane was relatively normally healthy when that is far from the case. "Food and exercise" were matters beyond Mrs Lane's ability to achieve.) 303Whilst starvation is a common theme of many of the plaintiffs submissions, in fact there is no evidence from anyone that Mrs Lane died from starvation. The fact was that she was unable to feed herself so she needed to be artificially fed by some means. The expert evidence establishes that PEG, Naso/Gastric and Parenteral feeding were not appropriate. Despite warnings to the contrary, the plaintiffs tried to feed Mrs Lane with minimal nutritional content food such as yoghurt, vegemite and some other liquidised substance. Despite claims that Mrs Lane could in fact swallow, oral feeding was spasmodic and never a meaningful alternative and had no apparent effect on Mrs Lane's declining situation and ran the serious risk of aspiration and an even earlier demise than was otherwise the case. 304In PS1 the plaintiffs refer to the Catholic Code of Ethics which they say should extend to all human life. 305That code is apparently that "Care should be taken with the use of the concept or term 'quality of life'. It is not consistent with the principle of the sanctity of human life to claim that the value or worth of the life of one human being can be measured, or compared with that of another, or to claim that the value or worth of a human life can be in any way reduced by illness or disability." The suggestion seems to be that Mrs Lane was treated unlike other patients because she was assessed as having a pre-morbidly poor quality of life. I would strongly disagree. No one had the view that Mrs Lane was to be treated any differently to anyone else. Regrettably she never demonstrated that she had the ability to recover, even to her pre accident condition. 306As I stated earlier, a hospital is not under an obligation to provide treatment that is felt to be futile. No doubt had it been wished, Mrs Lane could have been transferred to a private institution with the economic capacity to try all the alternatives her family wished to try. But even then, the medical profession has an obligation to not carry out un-necessary and futile treatments without reasonable prospects of a beneficial outcome to the patient, especially in circumstances where the patient herself is unable to give instructions. THE PARTICULARS OF NEGLIGENCE 307Whilst I don't hold the plaintiffs strictly to the particulars of negligence pleaded, given they are not represented, none the less the particulars were drawn up by the solicitors who acted for the plaintiffs initially and presumably were prepared in response to instructions. 308The first particular is Failing to consider or properly consider and implement treatment for Helen in accordance with New South Wales Health End of Life Care and Decision Making Guidelines as revised in June, 2006. Despite numerous requests to indicate in what respect the ELCDMG were not complied with, this has not been done other than by general references to the guidelines. Mr Sergi in his submissions pars 113-128 deals with this particular. I have already referred to the ELCDMG in previous paragraphs. Firstly the fact that there may have been a departure from the guidelines does not necessarily indicate there has been a breach of the duty of care. The departure has to be relevant and causative of some damage. There is no evidence that the guidelines have not been complied with in any way causative of any damage to Mrs Lane and the plaintiffs. 309In fact, as pointed out by Mr Sergi, the guidelines make frequent referral to there being no right to treatment that is unreasonable or that offers negligible benefit to a patient, no matter that a family may wish that everything possible be done. Indeed the guideline specifically refers to the problems surrounding artificial hydration and nutrition and that its withdrawal may be seen as a limitation on treatment consistent with the guideline. 310The defendant's primary duty of care was, of course, to Mrs Lane and not to the plaintiffs. If they treated Mrs Lane appropriately then they have not committed a negligent act causative of any damage to the plaintiffs. The plaintiffs claim is one of mental harm in each case, caused by the hospitals negligent treatment of their mother. 311Part 3 of the Civil Liability Act makes extensive provision for plaintiffs suffering mental harm. Liability in a defendant is restricted in cases where the mental harm personal injury is not a direct result of negligence against a plaintiff but against a person with whom the plaintiff has a close relationship. 312The plaintiffs have referred to s30 of the Act which provides that (1) This section applies to the liability of a person ("the defendant") for pure mental harm to a person ("the plaintiff") arising wholly or partly from mental or nervous shock in connection with another person ("the victim") being killed, injured or put in peril by the act or omission of the defendant. (2) The plaintiff is not entitled to recover damages for pure mental harm unless: (a) the plaintiff witnessed, at the scene, the victim being killed, injured or put in peril, or (b) the plaintiff is a close member of the family of the victim. The plaintiffs clearly come within the meaning of the section. 313Section 31 requires that the mental harm be a recognised psychiatric illness. 314Section 32 of the act limits a defendant's liability for mental harm by providing that 1) A person ("the defendant") does not owe a duty of care to another person ("the plaintiff") to take care not to cause the plaintiff mental harm unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken. (2) For the purposes of the application of this section in respect of pure mental harm, the circumstances of the case include the following: (a) whether or not the mental harm was suffered as the result of a sudden shock, (b) whether the plaintiff witnessed, at the scene, a person being killed, injured or put in peril, (c) the nature of the relationship between the plaintiff and any person killed, injured or put in peril, (d) whether or not there was a pre-existing relationship between the plaintiff and the defendant. 315It has not been submitted that the plaintiffs do not qualify under this section. 316The second particular is Failing to investigate or investigate and treat Helen's condition of pneumonia or similar condition by the administration of antibiotics or other appropriate drug. This has not been established. On admission Mrs Lane was not suffering from pneumonia but was receiving antibiotics. If she was suffering from pneumonia at the end, it was beyond rational treatment. 317The third particular is Failing to ambulate Helen as a consequence of a decision to bedfast her such that this caused a deterioration in Helen's condition so as to contribute to her death. I find that Mrs Lane was never capable of being ambulated and the use of the expression "bedfast" is misleading. The fact is Mrs Lane was bedbound and showed no sign of being able to be more active at any stage. The expert evidence suggests attempts to ambulate were impractical and in any event would have made no difference to her condition. 318The fourth and fifth particulars are Failing to provide any or any proper nutrition to Helen so as to prevent the development of anorexia and starvation which contributed to her death and Failing to acknowledge Helen's request for nutrition and treatment so as to contribute to her death. This has not been established for reasons already given above. There is no evidence that Mrs Lane made any requests for nutrition although the plaintiffs interpreted their observations of her at times as indicating such a request. 319The sixth particular is Failing to investigate or properly investigate Helen's pre-hospital seizure. I accept that Mrs Lane was symptomatically treated in accordance with professional observations and tests such as CAT scan, pathology and swallowing. This relates to the view that her condition should have been and was capable of being definitively diagnosed. I do not accept that proposition or that the failure to come to a definitive diagnosis would have been in the circumstances negligent. 320The seventh particular is Failure to prepare a management plan. I do not accept that is the case. The clinical notes have many references to discussions with next of kin as to Helen's management and care. It was the subject of a lengthy meeting on 19 March. Again this all comes back to whether or not Mrs Lane was treated appropriately from the time of her admission and, whilst it may not have been what Deidre or Elizabeth wanted at times, I find that she was treated in accordance with acceptable medical practice at the time she was being treated. That is practices widely acceptable to other Australian medical practitioners. 321The eighth particular is Incorrectly diagnosing an hypoxic injury. Even if this was correct, the plaintiffs have to prove that doing so was negligent and that such a negligence led to some poorer outcome for the plaintiff. In my view a diagnosis of hypoxic brain injury was reasonable in the circumstances having regard to the reported hospitalizing incident of Mrs Lane ceasing to breathe and turning blue and having a significantly reduced GCS. Dr Mellick, (Ex47) an expert for the plaintiffs, regarded that diagnosis as a reasonable hypothesis. 322The ninth particular is Failing to provide appropriate treatment on the assumed basis that Helen had a poor quality of life pre-morbidly when this was not the case. I totally reject any notion that Mrs Lane had anything other than what any reasonable person would regard as a poor quality of life before she went into hospital. That is not to say that she may have continued to live in such a way for some time, but the very fact of her poor health was the probable cause of the incident she suffered on 10 March and substantially contributed to her inability to recover. 323The tenth particular is Failing to obtain accurate pre-hospital admission medical treatment and pre existing conditions from Helen's treating doctors by either contacting such doctors and by requesting their records and obtaining such information from Helen's primary care giver, Deirdre Lane. I find that there was nothing about the way in which the hospital gained information about Mrs Lane's pre morbid situation that could be regarded as negligent. Bearing in mind these events happened over five years ago and the ability to recollect every detail must be limited, I note that Dr Coupe made a record as to contacting Drs Boyce and Fairfull-Smith on 11 March. Additionally, as is very apparent from the clinical notes, it became fairly obvious that there was a family conflict about what was going on. That places the hospital in a invidious situation. Whilst Dr Beek, the treating doctor was not apparently spoken to, there is little doubt from his evidence that he would not have contributed to a greater understanding as to Mrs Lane's pre-morbid condition or how she should be treated than was in fact the case. The background history obtained by the hospital was not in my view inaccurate having regard to other objective evidence referred to in the chronology above. 324The eleventh, twelfth and thirteenth particulars are Administering or continuing to administer to Helen morphine when it was apparent that Helen was having an adverse reaction to the drug including the development of a chest infection with subsequent development of pneumonia. Administering and/or continuing to administer to Helen morphine when such drug impeded Helen's ability to communicate her wishes in respect to treatment and Administering and/or continuing to administer morphine to Helen when such drug was having an adverse effect upon Helen and her wellbeing and Administering and/or continuing to administer morphine to Helen when such drug was having an adverse effect upon Helen and her wellbeing. I totally reject these particulars as having any relevance. The expert evidence from Drs Raftos and Obeid clearly disagree with these propositions as being evident of any neglect. However their view is also the view of all the treating doctors, Dr Coupe, Dr Burrell and Dr Laird. All practitioners agree that the dosages received were the minimum therapeutic dose and highly unlikely to have adversely affected Mrs Lane in any way. There is no evidence to support that Mrs Lane had developed a chest infection leading to pneumonia at any time proximate to her receiving morphine. 325The fourteenth particular is Failing to obtain or properly obtain specialist neurological or geriatric opinion as to Helen's condition so as to properly prepare an appropriate management plan for Helen. There is no evidence that this would have been advisable, warranted or effective. Indeed the evidence is to the contrary, that it would not have made any difference to Mrs Lane's outcome (see Dr Obeid in particular). 326The fifteenth particular is Failing to continue to administer to Helen antibiotics when she was in need of such medications as she was developing an infection. I find that Mrs Lane was administered antibiotics as and when she needed them. I find no evidence of any relevant infection after antibiotics ceased. I am satisfied that she received all appropriate medication having regard to her condition and its management. LIABILITY 327 Unless the court considers peer professional opinion irrational, provided a medical professional acts in a manner widely accepted in Australia as peer professional opinion as to competent professional practice at the time the service was provided, a person does not incur liability in negligence arising out of the provision of a professional service. (s5O CLA). The defendant argues that its professional services to Mrs Lane were conducted in accordance with peer professional opinion. 328It would have to be acknowledged that end of life medical treatment is a fertile ground for the admixture of ethics, morals and the law, not to mention particular religious beliefs. The courts are not often involved in decisions as to such treatment, at least while the patient is still alive although some examples are Northbridge v Central Sydney Area Health Service [2000] NSWSC 1241 and Messiha v South East Health [2004] NSWSC 1061. In the former case the court held that what constitutes appropriate medical treatment in a given case is a medical matter in the first instance. However, where there is doubt or serious dispute in this regard, the court has the power to act to protect the life and welfare of the unconscious person having regard to the best interests of the person concerned. 329In the latter case Howie J said at par 25 that 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. This is not to make any value judgment of the life of the patient in his present situation or to disregard the wishes of the family and the beliefs that they genuinely hold for his recovery. But it is simply an acceptance of the fact that the treatment of the patient, where, as here, the Court is satisfied that decision as to the appropriate treatment is being made in the welfare and interest of the patient, is principally a matter for the expertise of professional medical practitioners. 330The facts in that matter were that the patient, was admitted to the Intensive Care Unit of the hospital having suffered an asystolic cardiac arrest. As a result he was unconscious and apparently in a deep coma. The treating doctor determined that the current treatment regime of the patient should cease and that he should be removed from the Unit and placed under palliative care. She accepted that withdrawing treatment in the Unit would have the effect of reducing his life expectancy from possibly weeks to possibly days. An application was brought by members of the patient's family in order to restrain the medical staff at the hospital from altering the patient's treatment. The family believed that, contrary to medical opinion, there were some slight signs of improvement in the patient's condition and that, if the current treatment regime continued, thus prolonging his life by even a short period of time, the patient's condition might improve. 331Even bearing in mind, as was stated by Lord Mustill in Airedale NHS Trust v Bland [1993] AC 789 (@897), that a decision on "best interests" is an ethical, not a medical decision and that medical opinion is not necessarily decisive, in the present case, I cannot see that any decision made by the medical staff at LBH or CDMH was otherwise than in the best interests of their patient. 332As I stated previously, hospitals operate within increasingly limited budgetary restraints. In some respects those considerations force ethical guides such as the ELCDMG which have been previously referred to. Hospitals have to prioritise patient care in accordance with need and urgency. Hospitals have limited staff and, in many rural areas, hospitals may have less than the optimum number of health professionals in a particular speciality. The LBH which is a reasonably large hospital only had one Speech Pathologist who theoretically may be required to see many patients beyond her physical capacity. All those factors weigh upon the mind of staff and must affect the decisions made. Is an MRI necessary? Can I justify transferring the patient many kilometres to a hospital that has equipment not available here? Should I get the Speech Pathologist out of bed on her day off to see the patient if the condition is not urgent? 333Whilst 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. This is not a Rogers v Whitaker [1992] 175 CLR 479 situation where there was a failure to advise of a highly uncommon but catastrophic side effect of the proposed treatment such that the plaintiff in that case would not have taken the risk. 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. 334There is also no doubt that the plaintiffs understood what was happening in the objective sense, despite their wishes for other things to be done. 335However 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. DAMAGES 336Part 3 (PS3) of the plaintiffs submissions goes to the issue of damages. Part 4 (PS4) responds to the defendant's submissions. 337Under the CL Act s16 a person is not entitled to damages for non -economic loss unless their injury is at least 15% of a most extreme case. Dr Pearson, psychiatrist is the plaintiffs' medico legal expert. He was initially briefed by solicitors but has nowhere made or been asked to make an estimation of their injuries as a percentage of a most serious case. If the plaintiffs do not make the threshold, they are only entitled to damages for economic loss, home care and out of pocket expenses. 338I would accept that both plaintiffs suffer from a recognisable psychiatric illness. What they have to prove is that their illness can be related to the defendant's negligence. There is material before the court indicative of the many problems Deidre and Elizabeth had before their mother passed away. Neither could be regarded as having led a normal trouble free life. Prior to their mother's death there is evidence of significant conflict between each other over various things including their mother's care as well as conflict with other members of the family. The significance of the family conflict was such that it was having a deleterious effect on Mrs Lane's own health as can be seen from Dr Beek's clinical notes. 339In Ex 57 at P129 there is a letter from a Ms Lynch that reveals some sort of mediation being attempted between Mr Lane and Deidre, unsuccessfully, on a number of occasions to resolve family conflict. When these sessions occurred is not stated. It is also quite clear from the same exhibit that Deidre has consulted many counsellors, psychologists and psychiatrists since 2007 although how much of this related to ongoing family disputes as opposed to Mrs Lane's death is difficult to determine. There was and still is significant family turmoil that has on one occasion ended up in the Local Court. 340I am unable to attribute cause or blame for this family dysfunction but it was a situation that pre-existed Mrs Lane's hospitalisation. A counsellor, Mr Gillard at the Casino Medical Centre said on 14 Sept 2007 that Deidre's presentation on six occasions since 20 July had "features of anxiety and depression due largely to a dysfunctional family dynamic, itself exacerbated by her mother's recent death and associated grieving". 341Whilst pre 2007 material is not abundant, there is a sufficiency of it to clearly indicate that both Elizabeth and Deidre had serious personal problems well prior to their mother's hospitalisation. A significant amount of this related to the family situation about which it is not my role or function to attribute blame, but it is clear that the over all family dynamics, as far as it affected the plaintiffs, was substantially more severe than what might be regarded as normal. Elizabeth:- 342Exhibit 44 are medical records in regard to Elizabeth dating back to 1987. Much of the handwriting is indecipherable but it appears that she was at that time suffering chronic anxiety as a result of involvement in a hold up. From March 2001 she had a number of disputes with her GP over obtaining medical certificates to be off work and was complaining of work related stress as making her ill. Despite advice, she refused to see a psychologist. In July that year her GP wanted to discuss the possible relationship between her physical symptoms and anxiety but she refused stating that her "illness was in her mind". In October she was complaining again of work related stress endeavouring to get a four day week. In July 2002 she requested a letter to not return to work related to a complex and involved family dispute with Deidre. She was looking after four foster children and cited family dramas, dynamics, dysfunctional problems, sybling problems and rivalries. 343In August 2003 she spoke of her mother's pains, Deidre's problems, alternate therapies, Deidre living in a caravan with 14 dogs and the family dynamics. In August 2004 Her GP suggested she see Dr Arnoldus for counselling re family dynamics and in November she requested a referral to Dr Scurrah re family relationships. 344In Sept 04 she saw a counsellor (DTB P397) concerned about the welfare of her mother. She said that Deidre lived with her parents because, according to their father, she couldn't live anywhere else. She said Deidre controls her mother to such a degree that it "constitutes abuse" and her mother's emotional and mental health was suffering. 345Exhibit 51 is a note from Dr Scurrah (psychiatrist) dated 25 /11/04 who stated that she had a number of legitimate concerns regarding her mother, in particular her mother's psychological state and whether there were significant areas of exploitation within the family. Her history indicates her mother may have dementia or pseudo dementia. 346DTB P399/400 is an extensive note on a consultation with a counsellor on 30 March 2005. This related to continuing difficulties with the family. She had not spoken to Deidre for some months and thought she was drinking and "on the edge". She discussed Deidre assaulting her and the possibility of an AVO. She felt her parents were powerless against Deidre and would not ask her to leave. 347In September 2006 she discussed her sister moving in with her mother and being over controlling. In October 2006 she wanted to talk about her mother and Deidre and the family dynamics with Deidre being a controlling influence. She said her mother was anxious, depressed and dementia (?), Deidre had an overbearing effect plus an alcohol problem which caused her to behave in a bizarre manner. The rest of the family were not game to speak to Deidre who bullied her mother at times. Deidre:- 348Between July and November 2002, Deidre had nine counselling sessions with counsellors at ACON, four sessions between April 2003 and March 2006 and five sessions after June 2007. There are comprehensive notes of most of these sessions that appear as exhibits a number of times due to doubling up. I will refer to the defendant's tender bundle page numbers (DTB P) although, as numbered, a lot of the material is out of order. The notes themselves are not necessarily chronological within the same page and took some time to sort out. 349Initially she was referred because of an over consumption of alcohol leading to her hospitalisation on 12 July 2002 (DTB P383). She expressed concerns as to an ex-boyfriend and a previous sexual assault but went on to discuss her sister moving her belongings. She stated she didn't care if she lived or died but would not commit suicide as that would be too hard having to put all her dogs in the car and seal up all the holes. She said she had always felt depressed but refused a referral to a psychiatrist (DTB P377). 350She was subsequently seen on 17/7 and 24/7, the latter with Elizabeth also present. There were a further six sessions that year and then one in April 2003. 351The next entry is in November 2005, a referral from Kyogle Hospital following a panic attack that occurred after being assaulted by Elizabeth. She was seen four further times up to March 2006 when she complained that Elizabeth had come at her with a bread knife and she had got an AVO against her (DTB P388). 352Throughout the notes there are references to the family situation generally and her mother and sister in particular. 353There are a number of post March 2007 consultations at which time she was dealing not only with her mother's death but also the deaths of two close personal friends. Discussion:- 354Leo and Helen Lane had seven children, four boys and three girls all of whom are I understand still alive. Mr and Mrs Lane were teachers who married in 1952 and moved to Casino where, as I understand it, they accumulated substantial agricultural property and cattle over the years. I am unaware of the occupations of the other family members but Mr Lane has now retired from farming. It is quite apparent that for whatever reasons, life for Deidre and Elizabeth did not run a regular course, especially from the late nineties into this century. There has clearly been a long standing and bitter dispute between them and the family and with each other that has resulted in significant disharmony prior to Mrs Lane's death and since. I do not know the nature and extent of the families holdings nor do I know what may have been provided in any will left by Helen or whether such factors are at play somehow in this matter. 355I am satisfied that both plaintiffs had serious non-physical problems prior to March 2007. Those problems continue and have no doubt been affected by their mother's death. Regrettably, not many of the psychiatric or psychological profession who have provided reports were made aware of both sisters pre-existing situation in any detail. Some doctors have provided reports that clearly indicate that they have taken a side in the current situation without attempting to ascertain, at least as much as they could, what in fact was the true situation. 356For example Dr Walkden-Brown, GP, (Ex 54) says The non-inclusive attitude displayed toward Ms Lane and her sister Elizabeth by their siblings (the Lane brothers) and several members from the medical fraternity raises my suspicion that "there is something rotten in the state of Denmark", especially in view of repeated attempts to administer parenteral morphine to an elderly patient who was apparently not in pain and who was not in the terminal phase of an established medical condition to warrant end stage palliative care. It appears somewhat uncharacteristic that the medicos did not keep adequate notes in relation to the planning and carrying out of their medical management. Equally it is hard to understand was why an elderly patient with willing and capable family carers was not permitted to be managed in the familiar surroundings and in the comfort of her own home and bed.) Dr Arnoldus-Lewis, psychologist, (Ex 57 pp 81-84) says In my opinion, Ms Lane is a woman of rare qualities, committed to high standards of integrity and honesty. She has been unfairly vilified by her father and brothers for her extraordinary non-conformist attitudes and behaviours which they have used to portray her as psychiatrically disturbed. However, according to Ms Lane she has never been previously diagnosed with a psychiatric disorder or incarcerated in a psychiatric institution. Ms Lane's chronic PTSD and Associated Disorders will more than likely need intensive long-term therapy to help her cope with what she terms as her father's and brothers' hostilities, threats, 'betrayal and defamation' of her extraordinary personality.) 357Whilst the two medico-legal psychiatrists Drs Petroff and Pearson may disagree over the formers view expressed in evidence as to a folie a deux operating with the plaintiffs, their general opinions are basically consistent. Both feel that, without use of medication, the sisters will not recover although there may be some improvement at the conclusion of litigation. I do not find it necessary to resolve that particular issue one way or another despite my comments at hearing and which have been referred to by Mr Sergi in his submissions at pars 205-209 as it does not really add to or detract from the plaintiffs' conditions except, as he says, to perhaps explain the inexplicable. 358According to Ex 7, Deidre has not been in any paid employment since 1995. Elizabeth did work at Centrelink but as I understand it that ceased before 2007. I do not know what her earnings were and there is no evidence of what they might have been. 359Given Deidre's pre 2007 work history I could not be satisfied that she would be capable of obtaining any meaningful paid employment for reasons completely un-associated with her mother's death. Similarly Elizabeth's work history is substantially unknown and again I doubt that, due to factors existing at the time Mrs Lane was hospitalised, she had a capacity for gainful employment, although she was at least more recently employed than Deidre. 360So where does that leave us at this point in time. I am satisfied that their current inability to work due to a psychiatric illness is substantially unrelated to factors relevant to their mothers death. In that regard I would not be satisfied that either plaintiff's injury arising from Mrs Lane's treatment would amount to 15% of a most serious case, as that expression is understood. 361The injury each plaintiff suffered as a result of Mrs Lane's hospitalisation as far as each plaintiff is concerned, relates to the belief held by both sisters as to their mothers wrongful treatment whilst a patient within the two hospitals. That they have that belief I do not doubt nor do I doubt the ongoing effect it has had on them, in combination with other un-related but serious emotional and personal issues. However it is my opinion that their belief as to their mother's treatment at the hands of the defendants is a mistaken and misguided belief that has no basis in the facts established to my satisfaction during the trial. Thus while the effect continues, it is an effect that has not been caused by the defendant's negligence. 362For the above reasons I am not satisfied that the plaintiffs have established any negligence on the part of the defendant nor have they established any quantifiable resulting damage. ORDERS 363There will be a verdict for the defendant in each case. Subject to any additional consideration, costs should follow the event. I order the plaintiffs to pay the defendants costs. The exhibits may be returned. ********** 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. Decision last updated: 26 February 2013