MAHARAJ v TE WHATU ORA [2023] NZHC 2128

MAHARAJ v TE WHATU ORA [2023] NZHC 2128 [9 August 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2023-404-1604[2023] NZHC 2128UNDER the Declaratory Judgments Act 1908IN THE MATTER OFANDIN THE MATTER OFBETWEENANDHEALTH NEW ZEALANDPlaintiffALVIN ARVIN MAHARAJMOVEENA MAHARAJ, KAVITABHARDWAJ AND DARSHEEKASHARMAApplicantsTE WHATU ORA OF AUCKLANDRespondentHearing: 8 August 2023Appearances: D S McGill and K J Rowe for ApplicantsP N White for RespondentJudgment: 9 August 2023ORAL JUDGMENT OF EATON J[1] I begin as I did yesterday by acknowledging and expressing the Court'ssympathy to the family of Alvin Maharaj. I am also cognisant of the stress and straincases of this nature place on the treating clinicians and hospital staff. It is no easierbeing asked to make legal judgments in such a case.[2] On 20 July 2023, Alvin Maharaj suffered a heart attack. Mr Maharaj presentedat Auckland Hospital with a hole torn in the muscular wall that divides the heart'schambers into left and right halves so as to ensure that the blood flows in the correctdirection through the heart. Such a condition is a rare but lethal complication of aheart attack. Mr Maharaj was placed on a life support system known as Veno-arterialExtra Corporeal Membrane Oxygenation (VA ECMO) as a "bridge to a decision" toallow the clinicians time to assess whether there were any interventional optionsavailable.[3] On 3 August 2023, Mr Maharaj's family was advised of a decision to removeMr Maharaj from life support, there being no surgical or interventional optionsavailable to save Mr Maharaj's life and the concern that other patients with survivableconditions will have to be turned away in order to keep Mr Maharaj alive. Theclinicians proposed taking Mr Maharaj off life support on 4 August.[4] Mr Maharaj's family had not understood his condition to be so grave. Theywere concerned there might be alternative treatments that ought to be explored.[5] On 4 August, Mr McGill, on behalf of the family, wrote to Te Whatu Ora –Health New Zealand (Te Whatu Ora) confirming the family did not consent to theremoval of life support and asking for at least five days to allow the family to obtainindependent medical advice.[6] Late on 4 August 2023, two applications were filed. Te Whatu Ora filed astatement of claim under the Declaratory Judgments Act 1908, seeking an order that itis lawful for Mr Maharaj's treating clinicians to turn off his VA ECMO machine withthe effect that it will cause his death (and any ancillary orders appropriate ornecessary). Mr Maharaj's sisters1 filed a notice of an interlocutory application for an1 I will refer more broadly to Mr Maharaj's family as they share a common position.interim injunction seeking orders that Te Whatu Ora refrain from turning off the lifesupport machine and continue to provide medical care as required until an independentmedical opinion had been obtained and the family had carried out religious duties.Subsequent process[7] On the evening of Friday 4 August 2023, Peters J convened two telephoneconferences with counsel but declined to make the orders sought. On the morning of7 August 2023, Peters J issued a minute observing that no affidavit evidence had beenfiled in support of either application and that the jurisdictional basis upon which theorders were sought was unclear.[8] The proceedings were then referred to me as Duty Judge. At 4 pm on 7 August2023, I convened a telephone conference with counsel. By then, Te Whatu Ora hadfiled affidavits from three of the clinicians involved in Mr Maharaj's care.Mr Maharaj's sister had filed an affidavit in support of the application for the interiminjunction and Te Whatu Ora had filed a further affidavit in response.[9] Mr McGill advised that the family had sought medical opinions from a numberof overseas specialists and that meetings with experts based in Australia and Americawould take place on 8 August 2023. Mr White, on behalf of Te Whatu Ora, agreed thestatus quo should prevail in order to allow the family the opportunity to seekindependent advice. Mr McGill indicated that if that advice was consistent with theadvice provided by the Auckland Hospital Clinicians, it was likely the dispute wouldbe resolved.[10] A hearing was scheduled before me at 3 pm on 8 August 2023 to determine theapplications if necessary.[11] The dispute was not resolved, and I heard argument from counsel. Given theurgency of the matter, I have resolved to provide brief reasons. I begin by summarisingthe evidence.The evidenceTobias Michael Merz[12] Dr Merz is an Intensive Care Specialist employed in the Cardiothoracic andVascular Intensive Care and High Dependency units (CVICU and CVHDU) atAuckland Hospital. He has been working there since 2018 and is responsible for themedical care and treatment of Mr Maharaj.[13] The CVICU provides intensive care for cardiology patients over 15 years ofage and other patients requiring support from ECMO. ECMO is an extracorporealtechnique of providing prolonged cardiac and respiratory support to patients whoseheart and lungs cannot provide adequate gas exchange or perfusion. It is usually a lastresort.[14] ECMO support is extremely invasive and expensive to run. Therefore it istypically only used if a patient has a survivable condition.[15] Mr Maharaj was admitted into CVICU on 20 July 2023 following a heart attackwhich resulted in a hole being torn in the muscular wall dividing the heart. Such atear is rare but lethal. The heart attack was so severe that the tissue in the muscularwall became necrotic due to lack of blood supply, leaving a large hole.[16] Mr Merz goes on to say Mr Maharaj was offered ECMO, given his relativeyouth (46),, as a "bridge to decision". He was placed on it on 20 July.[17] Three interventional cardiologists and two cardiac surgeons extensivelyconsidered the matter but concluded there were no available options to repair the hole.A heart transplant is not an option for Mr Maharaj because he is currently on ECMO,is classified as Intermacs 1 due to low blood pressure and decreasing perfusion toorgans (confirmed by worsening acidosis and lactate levels), and is receiving treatmentfor ventilator-associated pneumonia and a possible urinary tract infection. There is nomedical or therapeutic benefit to be gained by continuing to maintain Mr Maharaj onECMO, according to Dr Merz.[18] This information was relayed to Mr Maharaj's family over several meetings.Members of Mr Maharaj's family were updated five times in July in respect of hiscondition. On 2 August, a family meeting was held explaining the lack ofinterventional or surgical options and the futility of ECMO. The family requested asecond opinion which was arranged for on 3 August.[19] He says On 3 August, a meeting taking over an hour was held between thefamily and Dr Andrew McKee (CVICU Intensivist), Dr Parma Nand (cardiacsurgeon), Dr Maurice Hogan, and a nurse specialist, Phillipa Neal. The circumstancesand lack of viable options, including transplant, were explained. The family hedescribed as despondent throughout the meeting.[20] Dr Merz has met with the family each day since 4 August. He has made hiscontact details available to discuss Mr Maharaj's situation with any clinician thefamily sought an opinion from.[21] The CVICU is often at full capacity, he says, and a patient on ECMO requiresconsiderable staffing resources.Peter Mark Alison[22] Dr Alison is a Cardiothoracic Surgeon employed at Auckland Hospital. Hewas consulted alongside Dr Parma Nand on surgical options for Mr Maharaj.[23] Dr Alison provides further detail as to Mr Maharaj's condition, explaining thatthe right ventricle is mildly dilated and severely impaired. Mr Maharaj has asignificant left to right shunt which means a large volume of blood, instead of beingdirected to the body, is diverted back through his right heart to the lungs. This causesthe right heart to fail from volume overload and the lungs to also fail from excessivecirculation.[24] Closing the hole in the muscular wall within the heart, surgically orpercutaneously, usually faces challenges due to the large size of the muscle, the largehole, and critical multi-organ failure. Placing Mr Maharaj on ECMO provided theteam with time to assess options and also provided hope the dead muscle would formscar tissue which may hold stitches during high risk intervention.[25] Dr Alison canvasses the following options:(a) Surgical patch: A patch of the hole involves stopping the heart, cuttingthrough the dead muscle, then stitching a large artificial patch to coverthe hole and surrounding area, then trying to come off support.However, he says there is unlikely to be scar tissue which would enablethe stitches to hold the patch in place. This is aggravated byMr Maharaj lacking sufficient remaining viable myocardium (heartmuscle), narrowed coronary arteries, and a generally deterioratingcondition. Such a repair, in his experience, would be futile. He hasnever seen successful closure in such a case.(b) Left ventricular assist device: This is a device surgically implanted inthe heart to act as a mechanical pump. It helps the left ventricle pumpblood to the rest of the body. It was deemed not appropriate becausethe hole would have to be closed, which is not considered viable for thereasons above.(c) Heart transplant: Heart transplants are contingent on strict criteria.Mr Maharaj has been on ECMO too long to meet the criteria. This isexacerbated by ventilator-associated pneumonia and urinary tractinfection. It would be, in his opinion, an inappropriate use of a donatedheart given the likely futility of the operation.[26] In summary, Dr Alison considers he and Dr Nand thoroughly explored allpossible surgical options and concluded nothing can be done to repair the hole or weanMr Maharaj off ECMO.Peter Robert Barr[27] Dr Barr is an Interventional Cardiologist employed at Auckland Hospital.[28] He and two colleagues were consulted in relation to interventional options forMr Maharaj. He gives evidence of only one option, that being percutaneous repair ofthe hole in Mr Maharaj's heart. This repair would involve the delivery of a nitinolmesh covered with polyester material across the hole using percutaneous centralarterial and venous access under fluoroscopic and transoesophageal echocardiographicguidance. The device must straddle the hole and anchor against stable tissue rims onboth sides. He says Mr Maharaj is not suitable for this repair due to the location andsize of the hole. The technique would not be successful and would likely worsenmatters by traumatising the region.[29] Dr Barr considers he and his colleagues have explored all reasonableinterventions.Kavita Kavirashree Bhardwaj[30] An affidavit was filed by Mr Maharaj's sister, Kavita Bhardwaj. That affidavitis also relied on in support of the family's application for interim relief. Ms Bhardwajis Mr Maharaj's sister and is authorised by the other applicants and the rest of thefamily to affirm her affidavit in support of the application for an interim injunction.[31] She explains that, on the day of Mr Maharaj's admission, the family went tosee him and were met by Dr Tobias Gozenbach. He explained Mr Maharaj had had aheart attack and was on ECMO. She says they were told Mr Maharaj would bemonitored for 10-14 days before carrying out surgery to repair the hole in his heart.Scar tissue would need to form, and one of two procedures would be carried out, eithera less invasive surgery inserting a device or open heart surgery.[32] At a later point, she says a doctor advised the family they expected the hole inMr Maharaj's heart would heal by itself. However, another doctor, who she can onlyrecall as "Mike", advised Mr Maharaj's heart would not heal by itself, leading toconfusion.[33] During his stay, the family has remained present and been told by nurses thatMr Maharaj was stable, which they took to mean his condition was not deteriorating.[34] On 28 July 2023, Ms Bhardwaj says Dr Bevan Vickery told her parentsMr Maharaj had been stable and would hopefully remain so as to allow them to carryout scans and x-rays on 31 July, with surgery to repair the hole the following Monday,7 August 2023. She says the family was not advised of the results of the 31 July tests.[35] She says that, on 1 August, Dr Hogan told her sister the surgical team werelooking at an operation on 2 August. Later that afternoon, a doctor asked variousquestions about Mr Maharaj's circumstances and mentioned he may be a goodcandidate for a transplant, which was the first time the possibility had been raised.[36] She says that around 4.30 pm on 2 August, Dr Hogan called a family meeting.The family attended but was not sure what it would be about. She says Dr Hoganadvised that the planned surgical intervention was off the table and that ECMO wouldbe discontinued the following day. The family asked about other options available, towhich Dr Hogan mentioned open heart surgery and heart transplant. The family weredevastated as this went against their expectations. They advised Dr Hogan a secondopinion would be sought, to which he suggested a meeting with the medical team.[37] From this point, Ms Bhardwaj says the hospital reduced the number of nursescaring for Mr Maharaj in the CVICU from two to one.[38] Ms Bhardwaj's account of the 3 August meeting is as follows. The family metwith Dr McKee, Dr Nand, Dr Hogan, and a senior nurse. This was the first meetingwith the whole medical team. They were advised Mr Maharaj's lungs had fluid inthem, and his kidneys were not functioning well. She says this was shocking as theywere not aware his health had been deteriorating and did not understand why this wasthe case. She says little explanation was provided for why they would not performsurgery and intended to turn his machine off within 24 hours. Her evidence is the teamhad made their mind up and quotes Dr McKee as saying: "You can't change our mindand we can't change yours."[39] She says there was a lack of compassion shown to the family nor considerationfor Mr Maharaj's youth and fatherhood of a special needs son. At no point did thestaff say Mr Maharaj's case was hopeless. The hospital staff, she says, made facesthroughout the meeting as if they were confused as to the family's eagerness to keepMr Maharaj alive and discomfort with the prospect of him being shortly taken offECMO. When they advised the team they would seek a second opinion, they weretold they had 24 hours to obtain that.[40] From there, she says, the doctors arranged for a cardiologist to talk with thefamily. That specialist advised that scar tissue takes four to six weeks to form and wasa prerequisite to operation. This confused the family given the 14-day timeline theyhad previously been given.[41] Ms Bhardwaj says it became more difficult to get information out of nurses,though one said it was protocol for patients to only stay on ECMO for 14 days. Thefamily struggled getting further medical opinions and legal advice while the hospitalwas providing a deadline for a further meeting on 4 August before taking Mr Maharajoff ECMO. Ms Bhardwaj says they have not been provided by the medical team withinformation around second opinions from within or outside New Zealand and whethersimilar surgery has been performed by the doctors in the past. They have also not beentold about whether Mr Maharaj can be transported, other patients moved, or additionalbeds sourced.[42] There was to be a 2 pm meeting on 4 August. The family engaged Mr McGillof Duncan Cotterill who contacted the hospital's lawyer, Ms Tune, at approximately1.20 pm. Ms Tune advised the hospital would not take immediate action.Ms Bhardwaj says no one from the hospital attended the scheduled 2 pm meeting. Thehospital contacted Mr McGill to explain it would seek a declaration to legally takeMr Maharaj off ECMO to which they instructed Mr McGill to file an interiminjunction.[43] The family wants Mr Maharaj's treatment to continue to facilitate religiousduties and the seeking of a second opinion. She sets out the family's extensive effortsto seek a second opinion including contacting medical staff in Singapore, Canada,Melbourne, Sydney, Daly City, New Delhi, and Bengaluru as well as doctors from theVictorian Cardiovascular Services, Alfred Health, John Muir Health, the Asian heartand Research Centre, and the Medanta Heart Institute. Some preliminary responseshave been received.[44] Ms Bhardwaj also gives evidence of concerns around the standard of careprovided to Mr Maharaj. This concerns the amount of nurse-monitoring occurring,errors in reading of temperature, and an IV line leaking blood.[45] At the hearing, Mr McGill filed an updated affidavit from Ms Bhardwajconfirming further requests have been made of overseas experts and detailing theformal responses received to dateAndrew McKee[46] The other affidavit I have received and considered is from Andrew McKee.Dr McKee, a Cardiothoracic Anaesthetist and Intensive Care Specialist at AucklandHospital, is the clinical director of CVICU. His affidavit responds to Ms Bhardwaj'sfirst affidavit.[47] He considers, having read her evidence, that communications between the teamand the family were not ideal. He cannot say exactly what was said to the family atearly stages as he was not involved. However, he notes it can be difficult tocommunicate the severity of a patient's condition, and uncertainties in prognoses,while also not giving false hope or an overly optimistic outlook.[48] He explains that the term "stable" is used in an ICU context to refer to a patientbeing maintained on maximum support, reflecting their critical condition. A wardround note from 21 July, which refers to ECMO as a bridge to"scarring/surgery/intervention" is explained as being what is hoped to be achieved, notwhat can definitely be achieved. He also produces a note from a family meeting withan intensivist on 24 July indicating Mr Maharaj was unlikely to survive.[49] In a ward note from 31 July, it was noted Mr Maharaj was starting to suffercomplications in respect of his lungs and kidney. The note also records discussionwith family about that deterioration and potential for it to continue and complicateclosure of the hole in his heart.[50] Consultation with interventional cardiologists and cardiothoracic surgeons hadoccurred by 2 August. They had concluded the hole could not be closed.[51] Dr McKee says the view was formed that continuing ECMO would be futile.It is used to sustain life in the hope of a procedure. Once such procedures areunavailable, Dr McKee says continuing ECMO is not in Mr Maharaj's interests andcould result in the hospital having to turn away patients with potentially survivableconditions. He says the team tries to be compassionate when dealing with families insuch difficult situations.[52] He explains the 3 August meeting as intended to explain the situation furtherafter the family did not accept what they were told on 2 August. He attaches a notefrom the meeting which indicates it took place for over an hour, involved anexplanation of all treatment efforts, the lack of availability of such efforts elsewherein New Zealand (which meant Mr Maharaj would have already passed away had hebeen treated in another locale), and that no option currently existed to repair the holein Mr Maharaj's heart. It was also noted that it was explained Mr Maharaj was not atransplant candidate. Dr McKee says he explained that ECMO was only initiated inthe slim hope a procedure might be possible. Repeated questions on this topic wereanswered. He states the family remained despondent and disappointed and thatsympathies were expressed.[53] He rejects Ms Bhardwaj's evidence that why Mr Maharaj's health haddeteriorated was not covered. Deterioration on ECMO is not unexpected, and he saysthe family indicated they were aware of the possibility of complications. He says theteam had to repeatedly convey the unfortunate position that there was nothing morethat could be done.[54] Dr McKee refers to the evidence of steps the family have taken to seek overseasopinion. He views these efforts as unrealistic. The few responses there are note thatthis is a high risk situation with poor prognosis. Overseas transport on ECMO with afull medical team would be required. This would be immensely expensive, would notbe funded, he says Mr Maharaj may not survive the flight, and there is no certaintyany treatment in another country would succeed.[55] Dr McKee says the hospital is constantly operating near capacity, and asituation could arise at any time where they would have to turn away patients fromCVICU beds.The respective positions[56] I then summarise the parties' positions.Te Whatu Ora[57] Mr White, for Te Whatu Ora, submits there is nothing to be done to treat thehole in the septum of Mr Maharaj's heart. Continuing ECMO is no longer appropriate.Ordinarily, ECMO support would be withdrawn after consultation and agreement withthe family, but this has not occurred in this instance. A declaration is therefore sought.[58] Mr White cites Auckland Area Health Board v Attorney-General as providingthe relevant test Te Whatu Ora would have to satisfy to avoid seeking a declaration inrelation to ceasing life support treatment:2(a) the doctors responsible for the patient, taking into account a responsiblebody of medical opinion, conclude that there is no reasonablepossibility of that patient ever recovering from their present clinicalcondition;(b) there is no therapeutic or medical benefit to be gained by continuing tomaintain the patient on support, and to withdraw that support accordswith good medical practice, as recognised and approved within themedical profession; and(c) the relevant ethics committee and family concur with the decision towithdraw support.[59] Mr White says the evidence from Dr Merz, Dr Barr, and Dr Alison makes itclear that there is no reasonable possibility of Mr Maharaj recovering, and there is no2 Auckland Area Health Board v Attorney-General (NZ) [1993] 1 NZLR 235 (HC) at 255.further therapeutic benefit to continuing support. There was extensive consultationand unanimous agreement among the medical staff that there are no furtherinterventions available to Mr Maharaj. There is insufficient myocardium,accompanied by narrowed coronary arteries, and a deteriorated condition.Furthermore, the fact that Mr Maharaj has now acquired ventilator-associatedpneumonia, a possible urinary tract infection, and multiorgan failure confirm a clinicaldeterioration on ECMO.[60] Mr White acknowledges there has been no communication with the ethicscommittee, but this is irrelevant given the lack of interventions available to assistMr Maharaj off ECMO. He says there is simply no question for an ethics committeeto address. He notes efforts have been made to gain the consent of the family, but thishas not been successful.[61] Where consent has not been obtained, Mr White says the case Auckland AreaHealth Board makes it clear that a declaration is required from the Court to assureclinicians they would not be criminally culpable for the death of Mr Maharaj shouldECMO be discontinued.[62] For the reasons I have summarised above, Mr White submits ongoing ECMOis futile and risks other patients being barred from life-preserving treatment. He sayspatients with survivable conditions have been turned away from CVICU.[63] Mr White notes Te Whatu Ora does not come to the Court in a situation likethis lightly, and doing so has placed a further burden on already overburdenedclinicians.[64] He cites several policy considerations in support of Te Whatu Ora's position.Allowing the lack of family consent to prevent the withdrawal of ECMO or othersimilar therapies would disincentivise clinicians from placing patients onto suchtherapies where there is not a high expectancy of survival. This compromisesclinicians' ability to explore options for patients. Further, he submits Te Whatu Ora iscommitted to providing equitable care. However, there is an unequal distribution ofknowledge and resources enabling some families to pursue legal challenges towithdrawal of treatment decisions, but not others. To that end, Mr White reiterates hissubmission that the ethics committee has no place in circumstances such as this wherethere is no ethical question to consider; there are no available treatment options forMr Maharaj. Ethics committees are useful when there is a clinical dilemma to resolve— no such dilemma arises here. While it is preferential for consent to be granted, heaccepts, clinicians should not have to seek court approval every time there is familydissent.[65] These factors combine, Mr White submits, to support the granting of thedeclaration. He says clinicians should be authorised to make the decision to withdrawsupport provided:(a) there has been consultation with other suitable clinicians who confirmthe lack of a possibility of the patient recovering;(b) the responsible doctors consider there is no therapeutic or medicalbenefit to be gained by continuing invasive life-preserving treatment,and that withdrawal accords with good medical practice as recognisedand approved by the profession;(c) the views of the patient, if known, and the views of the patient's familyand other suitably interested persons, if known, are taken into account.[66] There is no need in this process for consultation with an ethics committee.[67] Finally, Mr White addresses the family's sought injunction. He says the lawcannot countenance a general position that a family can require treatment irrespectiveof the clinical judgement of doctors involved.3 The initial application sought aninjunction for at least five days. He observes that four days have since passed, and itis inappropriate for the situation to continue, for an uncertain period of time, in thehope Mr Maharaj's family might find an opinion from an overseas person, uninvolvedin Mr Maharaj's care and unable to provide care, that they then seek to follow. While3 Citing Shortland v Northland Health Ltd [1998] 1 NZLR 433 (CA) at 443.such opinion is being sought, there is an ongoing potential for people who mightbenefit from life sustaining therapy to be deprived of that opportunity.The family's position[68] The applicants seeking injunctive relief are Mr Maharaj's sisters. Mr McGill,on behalf of the family, stresses that the family seeks further time to enable a secondopinion to be obtained from a suitably qualified expert. The original applicationsought an interim injunction for five days. Mr McGill submits that was overlyoptimistic, given that time period included a weekend. The five-day period expiresthis evening. He seeks an additional "day or two" to secure the second opinion. Asregards the relevant legal framework, Mr McGill submits there is a serious questionto be tried between the parties, namely, whether the hospital can turn off Mr Maharaj'sVA ECMO machine and end his life against his family's wishes and before they canobtain a second opinion regarding Mr Maharaj's prospects.[69] Mr McGill relies on s 8 of the New Zealand Bill of Rights Act 1990(NZBORA), submitting that the exceptions within that right have not yet beentriggered because there has not been sufficient and reasonable time to obtain a secondopinion. He submits that there is not a "full responsible body" of medical opinion thatsufficiently proves Mr Maharaj's heart rupture cannot be repaired. Mr McGill doesnot accept that the unanimous opinion of the Auckland Hospital clinicians, that it isappropriate to remove life support, reflects a "reasonable body" of medical opinion.He says that because those clinicians are employed by the Health Board, there is anappearance of bias and that a decision as significant as one to withdraw treatment thatwill result in a patient's death ought not be determinative absent an "independent"opinion.[70] Mr McGill accepts that the courts are appropriately reluctant to interfere inclinical decisions but submits that a decision that a particular patient's case is hopelessand that life-preserving treatment should be discontinued would only be made if thereis a sound body of medical opinion to support that conclusion. He relies on thedecision of Thomas J in the Auckland Area Health Board case, where the patient'sprognosis was described as hopeless and overseas second opinions had been obtainedsome 10 months prior to the decision.4 He further relies on Shortland v NorthlandHealth Ltd, where the Court refused an application to direct the Northland HealthBoard to continue dialysis for a patient who would die without a kidney transplant.5Mr McGill highlights that in that case, the Northland Health Board had completedwidespread consultation with appropriate specialists and followed guidelines tounanimously conclude the patient was unsuitable for long-term dialysis.[71] He submits that both the balance of convenience and overall justice in this casefavour the granting of the interim injunction because the applicants only seek a shorttime to secure a second opinion and submits there is insufficient medical evidence tosupport an assertion that Mr Maharaj's case falls within the "hopeless" category. Hestresses that Mr Maharaj will die if life support is withdrawn.[72] Mr McGill submits that it was only on Thursday, 3 August 2023, that the familyclearly understood that the clinicians had formed the view that a surgical repair wasnot an option. He submits that to allow the family five or six days to secure a secondopinion is in the interests of justice.Overview of the evidence[73] I then deal with an overview of the evidence on particular factual matters.Communication issues[74] I accept the evidence of Ms Bhardwaj that it was really only on Thursday,3 August 2023, that the family understood the clinicians had resolved there was nosurgical remedy for Mr Maharaj. From 20 July until 2 August 2023, the family hadunderstood that Mr Maharaj was "stable" and that the VA ECMO was a mechanism topreserve the situation pending a decision made by the clinicians as to the appropriatesurgical intervention.[75] I accept that the advice of the clinicians, proposing taking Mr Maharaj offVA ECMO on 4 August 2023, came as a shock and caused much distress to4 Auckland Area Health Board v Attorney General (NZ), above n 2.5 Shortland v Northland Health Ltd, above n 3.Mr Maharaj's family. Whilst I acknowledge that there was a communicationbreakdown, I accept the evidence of Mr McKee, the clinical director of the CVICU,that it is hard to communicate the severity of a patient's condition and uncertainties ontheir prognosis to families while at the same time not giving false hope or an overlyoptimistic outlook.[76] It seems it was the shock of learning there were no surgical interventionsproposed that led Mr Maharaj's family to lose confidence in the medical advice of theclinicians. If they had understood from the outset that surgical intervention wasmerely a possibility, given the severity of Mr Maharaj's condition, the decision towithdraw life-support would unlikely have given rise to that loss of confidence. Thedecision to obtain legal advice and to issue legal proceedings was, I find, a directconsequence of the loss of confidence.[77] The family has since had several days to come to grips with the medicalopinion. In that period, they have anxiously sought, from a variety of sources, a secondopinion. To date, no such opinion has been forthcoming.Mr Maharaj's prognosis[78] Regrettably, I am of the view, based on the detailed medical evidence from arange of specialist clinicians, that Mr Maharaj's prognosis is hopeless. The heartattack he suffered on 20 July 2023 has caused irreparable damage to his heart muscle,resulting in the necrosis of part of the septum between his two heart ventricles. That,in turn, has created a hole between those ventricles, causing a shunt of blood betweenthe two chambers which has in turn caused the right heart to fail from volume overloadand damage to his lungs. I accept that, but for the VA ECMO he is receiving, he wouldbe deceased. Notwithstanding VA ECMO, his condition is deteriorating. The VAECMO is avoiding the pressure on his heart and is, therefore, prolonging his life. Butthe overwhelming opinion of the clinicians is that there is no therapeutic cure forMr Maharaj. There is no option that would allow him to function off VA ECMO, andthe clinicians are unanimously of the opinion that it is no longer medically appropriatefor him to receive VA ECMO. I acknowledge Mr Maharaj's family have reached outto other international medical experts for a second opinion but, even if a secondopinion offered a glimmer of hope as to a surgical repair, I see no prospect of thatopinion leading to a change of view within the treating clinicians. It would not bereasonable to require suitably qualified and experienced clinicians to put on hold whatthey consider to be appropriate treatment regimes on the basis of a possibility raisedby another clinician who has not been involved in the treatment of Mr Maharaj. In acase where other patients' lives are put at risk by delays in withdrawing the VA ECMOfrom Mr Maharaj, it is not reasonable to require the treating clinicians to respond totreatment options that amount to no more than mere possibilities.[79] It is for those reasons I accept that it is, regrettably, appropriate to describeMr Maharaj's prognosis as "hopeless".[80] I accept without question that a decision to withdraw life support from a patientshould never be made without consultation amongst suitably qualified clinicians. Iam satisfied there has been significant consultation amongst appropriate cliniciansand, as I have indicated, I am satisfied that the opinions offered are independent andappropriately categorised as being made by a responsible body of clinicians in light ofrelevant medical opinion.Interests of other patients[81] I accept that the hospital is constantly operating near capacity, and a situationcould arise at any time where they would have to turn patients away from CVICUbeds, and since the decision that there are no treatment options for Mr Maharaj,patients with survivable conditions have been turned away from the CVICU. Otherpatients have been and will continue to be compromised as a consequence ofMr Maharaj remaining on life support. It has been good fortune that the demands onthe CVICU have been manageable since 4 August, however that situation couldchange at any minute.The essence of the dispute[82] Both parties seek orders under the Declaratory Judgments Act 1908 as to thelawfulness of Mr Maharaj's treating clinicians discontinuing the VA ECMO treatment.However, the contest as to legality is far narrower. The family does not suggest thatto cease the VA ECMO treatment would be unlawful of itself, rather, that it would beunlawful to do so until the family have had a reasonable opportunity to obtain analternative medical expert opinion and an ethics committee has been consulted. Theapplication for interim relief seeks a period of at least five days to obtain a secondmedical opinion. In oral submissions, Mr McGill suggested that period was overlyambitious and suggested a further one or two days.Legal Principles[83] The general principles in determining whether an interim injunction should beordered are settled. First, there must be a serious question to be tried in a proceeding.6Second, the Court must consider where the balance of convenience lies.7 Third, theCourt must consider the overall justice.8[84] As Mr White submits, the considerations relevant for a declaration in relationto ceasing life support were addressed by Thomas J in the Auckland Area Health Boardcase.9[85] There, an application had been made by doctors at Auckland Hospital and bythe Auckland Area Health Board for a declaration determining whether they would beguilty of culpable homicide if they withdrew a life support system which maintainedthe breathing and heartbeat of a patient suffering from an extreme case of Guillain-Barré acute syndrome. On the withdrawal of life-support, it was acknowledged thatdeath would be instantaneous but painless.[86] Thomas J held that the life-support system could be withdrawn without thoseresponsible bearing criminal liability. It was held that the discontinuance of a lifesupport system would not be unlawful if the discontinuance was in accordance with"good medical practice". Ultimately, Thomas J found that "good medical practice"was established if the process began with bona-fide decision-making on the part of theattending doctors as to what was in the best interests of the patient, encompassing6 American Cyanamid Co v Ethicon Ltd (1975) AC 396, [1975] 1 All ER 504 (HL).7 Above n 6.8 Klissers Farmhouse Bakeries Ltd v Harvest Bakeries Ltd [1985] 2 NZLR 140 (CA).9 Auckland Area Health Board [1993] 1 NZLR 235.prevailing medical standards, practices, procedures and traditions which commandgeneral approval within the medical profession. The Judge observed that all relevanttests would need to be carried out and that specialist opinions and agreement wouldbe required, and that extended consultation was likely to be appropriate. A court willneed to be satisfied a reasonable body of medical opinion leads the responsibleclinician to conclude there is no reasonable possibility of the patient ever recovering.The Judge considered that consultation with the medical profession's recognisedethical body was critical and that the patient's family must be fully informed and freelyconcur in what was proposed.[87] In Shortland v Northland Health Ltd,10 the Court of Appeal referred to theAuckland case, observing that the criteria identified by Thomas J were framed for aparticular factual situation and were not necessarily applicable to a different situation.[88] Finally, in relation to legal principles, I acknowledge the sanctity of life.Section 8 of NZBORA 1990 provides:8 Right not to be deprived of lifeNo one shall be deprived of life except on such grounds as are established bylaw and are consistent with the principles of fundamental justice.Discussion[89] I have regard to the test outlined by Thomas J in Auckland but observe that anydecision considering whether it is appropriate to make a declaration as to thelawfulness of the decision to withdraw the life-support of a patient must turn on itsown facts. The facts of the present case do not mirror those that arose in Auckland.[90] First, unlike the scenario described by Thomas J in Auckland, the clinicianstreating Mr Maharaj do not express concern that they might be exposed to a criminalprosecution as a consequence of their medical assessment. The clinicians are contentto implement their collective decision to withdraw ECMO. The proceedings were aresponse to the proposed injunction.10 Shortland v Northland Health Ltd, above n 3.[91] Further, I am satisfied on the evidence presented that the lives of other patientswho might otherwise survive heart attacks will be lost if Mr Maharaj is to remain onECMO. That is the harsh reality of a limited resource. As Mr White submits, ifMr Maharaj had suffered his heart attack anywhere within New Zealand outside ofAuckland, it is almost inevitable he would have died on that day. While I acknowledgethat Mr Maharaj's family simply seek time to secure a second opinion as opposed to aposition of absolute refusal to consent to the withdrawal of life-support, the ongoingrisk to the lives of other patients is a highly relevant consideration.[92] Third, there is no challenge to the lawfulness of the decision to withdraw theEMCO, rather the alleged unlawfulness is the denial of what is said to be a reasonableopportunity to secure a second opinion.[93] I am quite satisfied a reasonable body of medical opinion has concluded thereis no possibility of Mr Maharaj ever recovering. Mr McGill submits that the evidencefiled on behalf of Te Whatu Ora is not from an appropriate "body of medical opinion",but rather from clinicians sharing the same employer and who are, therefore, not trulyindependent. I do not accept that submission. Each of the clinicians is subject to theirHippocratic Oath, and I am satisfied they have reached their opinions independently,albeit through an appropriate process of consultation. That each of the cliniciansexpresses an opinion that life support should be withdrawn does not reflect an absenceof independence but the strength and validity of the medical opinion.[94] I acknowledge that an ethics committee has not been consulted. Mr McGilldid not advance submissions specific to the issue of referral to an ethics committee. Iaccept Mr White's submission that in circumstances, where on the medical evidencethere is simply no alternative medical intervention available, there is no issue to beresolved by an ethics committee.[95] Further, and by reference to the factors identified in Auckland, I am notpersuaded that the family's lack of consent to the proposed withdrawal, in thecircumstances of this case, could render the decision to withdraw life supportunlawful. As I have found, the position taken by the family is, in large part, a reflectionof their shock at learning that there is no medical treatment available that will saveMr Maharaj's life, having previously understood he was on life support whilst theappropriate remedial procedure was determined, as opposed to an informeddisagreement with the clinicians.[96] As the Court of Appeal observed in Shortland,11 to require the consent of thepatient's family to the cessation of a particular form of treatment, or to a decision notto give the patient a particular form of treatment, gives the family the power to requirethe treatment to be given or continued irrespective of the clinical judgment of thedoctors involved. The law cannot countenance such a general proposition.[97] As Thomas J recognised in Auckland, it is only in rare cases that the Courtmight see fit to make a declaration of the nature sought by Te Whatu Ora.[98] In my view, this is not an appropriate situation for the Court to make such anorder, given the very narrow nature of the alleged unlawfulness and that the clinicaldecisions made in relation to the treatment of Mr Maharaj have very serious and life-threatening consequences for other patients.[99] In those circumstances, I am not persuaded that this is a case where the Courtshould act as the arbiter of clinical decisions. The unanimous opinion of the clinicianswho have consulted widely, albeit amongst those employed at Te Whatu Ora, is that itis futile for Mr Maharaj to continue on the VA ECMO machine. In my view, theprovision of second opinions and the interests of other patients who are impacted bythe clinical decisions relevant to Mr Maharaj are not matters that the Court ought todetermine. Those are matters solely for the clinicians, in consultation with the family,to consider and determine. For those reasons, the application made by Te Whatu Orafor declaratory orders is declined.[100] I am also not satisfied that this is a case where the Court ought to intervene byway of an order for interim relief to allow the family further time to possibly secure asecond opinion. Grounds have not been established to justify the granting ofinjunctive relief. The balance of convenience does not favour placing other patients'lives at risk in circumstances where there is unanimous clinical opinion that11 Shortland v Northland Health Ltd, above n 3, at 443.Mr Maharaj will not survive, in the hope that an expert outside of New Zealand mighttake a contrary view.[101] I am not persuaded that the provision of additional time and a second opinionthat proffers the possibility of a surgical intervention would lead to any reconsiderationby the treating clinicians, given any such second opinion will inevitably be based onlimited information and made by persons who have not examined Mr Maharaj.[102] Relevant to both applications I adopt full-heartedly the observation of theCourt of Appeal in Shortland that "it is not for the courts to be the arbiters of the meritsin cases of this kind".12Result[103] The application made by Te Whatu Ora is dismissed as is the family'sapplication for injunctive relief.[104] The Court has every sympathy for Mr Maharaj and his family and thepredicament they now face. No doubt lessons will be learnt in terms of ensuring thata family is not given false hope as to the likely outcomes when a loved one is beingkept alive by medical intervention. I strongly encourage the family to communicatedirectly with the responsible clinicians in order that a time can be agreed upon andwhich the family may, if they so elect, be present when the ECMO is disconnected.Appeal[105] Counsel, I have anticipated the possibility of appeals, have you takeninstructions in that regard Mr McGill.[Mr McGill indicates he has no further instructions][106] Recognising that time remains of the essence, what I propose doing, subject tohearing from you, Mr White, is to extend the interim injunction until 5 pm this eveningto allow the family the opportunity, or indeed Te Whatu Ora, to file an appeal against12 Shortland v Northland Health Ltd, above n 3 at 134.my decision. If an appeal is filed, it will be for the appellant to obtain an extension ofthe interim injunction pending determination of the appeal.[Mr White indicates he has no further instructions][107] The interim injunction I made yesterday will remain in force until 5 pm thisevening.[108] Thank you counsel. I wish the family well....................................................Eaton JSolicitors:Duncan Cotterill, AucklandLegal Services, Auckland