Declaratory Judgments Act 1908 – injunctive relief – removal of life support – New Zealand Bill of Rights Act 1990 – right not to be deprived of life – lawfulness of clinicians’ decision
Maharaj v Te Whatu Ora [2023] NZHC 2128 per Eaton J.
Alvin Maharaj suffered a heart attack on 20 July 2023. At Auckland Hospital, he was placed on life support as a “bridge to decision” to allow clinicians time to assess if there were any interventional options available.
From 20 July 2023 until 2 August 2023, Maharaj’s family had understood he was stable and that life support was a mechanism to preserve the situation pending a decision made by the clinicians as to the appropriate surgical intervention.
On 3 August 2023, Maharaj’s family was advised of a decision to remove him from life support, there being no surgical or interventional options available to save his life and the concern that other patients with survivable conditions would have to be turned away to keep him alive.
This advice came as a shock and caused much distress to Maharaj’s family, causing them to lose confidence in the medical advice of the clinicians.
On 4 August 2023, the family’s lawyer wrote to Te Whatu Ora confirming they did not consent to the removal of life support and asking for at least five days to allow them to obtain independent medical advice.
Late on 4 August 2023, both parties filed applications in the High Court. Te Whatu Ora sought a declaratory judgment that it was lawful to turn off Maharaj’s life support machine, meaning it would cause his death. Maharaj’s family applied for an interim injunction seeking orders that Te Whatu Ora refrain from turning off the life support machine and continued to provide medical care as required until an independent medical opinion had been obtained and the family had carried out religious duties.
By the time of the hearing on 8 August 2023, Te Whatu Ora had filed four affidavits from clinicians involved in Maharaj’s care, setting out the interventional or surgical options that had been considered and why they were deemed not appropriate. Despite making extensive efforts overseas, Maharaj’s family couldn’t secure a second opinion from a suitably qualified expert and sought further time to do this.
There was evidence before the court the lives of other patients who might otherwise survive heart attacks would be lost if Maharaj remained on life support.
Applicable principles: application for interim injunction – declaration in relation to ceasing life support – applicability of principles in Auckland Area Health Board [1993] 1 NZLR 235 – right not to be deprived of life (New Zealand Bill of Rights Act 1990, s 8) – ongoing risk to lives of other patients a highly relevant consideration – reasonable body of medical opinion concluded no possibility of Maharaj ever recovering – whether there was any issue to be resolved by an ethics committee – whether family’s lack of consent to proposed withdrawal could render decision to withdraw life support unlawful – whether this was an appropriate situation to make declaration of nature sought by Te Whatu Ora – whether the court should intervene to allow family further time to secure second opinion.
Held: Te Whatu Ora’s application for a declaratory judgment is dismissed. Maharaj’s family’s application for interim orders is dismissed.
This is not a case where the court should act as the arbiter of clinical decisions. The balance of convenience does not favour placing other patients’ lives at risk in circumstances where there is unanimous clinical opinion that Maharaj would not survive, in the hope an overseas expert might take a contrary view.
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