FI v Public Guardian

Case [2008] NSWADT 263



CITATION: FI v Public Guardian [2008] NSWADT 263
DIVISION: General Division
PARTIES:

APPLICANT
FI

RESPONDENT
Public Guardian
FILE NUMBER: 083092
HEARING DATES: 2 September 2008
SUBMISSIONS CLOSED: 2 September 2008
 
DATE OF DECISION: 

16 September 2008
BEFORE: O'Connor K - DCJ (President)
CATCHWORDS: Review of decision to refuse to make an advance care plan – extent of power of Public Guardian – whether plan can include provision for withdrawal of life-sustaining treatment – relevant considerations
MATTER FOR DECISION: Preliminary question: power of Public Guardian to make provision to withdraw life-sustaining treatment in advance care plans
LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Guardianship Act 1987
CASES CITED: Airedale National Health Service Trust v Bland [1993] AC 789
Auckland Area Health Board v Attorney General [1993] 1 NZLR 235
Gardner; re BWV [2003] VSC 173
Hunter Area Health Service v Marchlewski (2000) 51 NSWLR 264
Re Miss AG, Guardianship Tribunal, 5 February 2007, unreported
In Re C (Adult Refusal of Treatment) [1994] 1 WLR 290
Messiha v South East Health [2004] NSWSC 1061
Northbridge v Central Sydney Area Health Service (2000) 50 NSWLR 549
Public Advocate v RCS (Guardianship) [2004] VCAT 1880
Re G [1997] 2 NZLR 201
Re Korp (Guardianship) [2005] VCAT 779
Secretary of Department of Health and Community Services v B (Marion's Case) (1992) 175 CLR 219
WK v Public Guardian (No 2) [2006] NSWADT 121
REPRESENTATION:

In person

S Free, counsel / Crown Solicitor's Office
ORDERS: 1. On the preliminary question, the answer is at para [53] of these reasons.
2. Pursuant to s 65 of the Administrative Decisions Tribunal Act 1997, the application is remitted to the Public Guardian for reconsideration of the decision made 11 February 2008.
3. The Public Guardian is to report back to the Tribunal in relation to the result of the reconsideration not later than 2 months after the date of this decision. Registrar to fix a mention date for that report.
4. Either party may apply, on three days’ notice, for the application to be relisted ahead of the date fixed under order 3.


1 This case raises the question of whether the Public Guardian has power to approve an advance care plan or palliative care plan for a protected person that permits life-sustaining treatment to be withdrawn.

2 FI is the mother of a protected person, DFI. DFI’s affairs are the subject of a limited guardianship order made by the Guardianship Tribunal appointing as guardian the Public Guardian. The order was first made on 27 June 2003, and was renewed on 5 December 2007. The terms of the order grant to the Public Guardian functions in respect of Health Care and Medical and Dental Consents, as follows:

          ‘ Health Care

          To determine what health care and major and minor medical treatment [DFI] may receive.

          This includes the authority to make end of life care decisions including advance care planning.

          Medical and Dental Consent

          Where [DFI] is not capable of giving a valid consent to her own treatment, to make…

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FI v Public Guardian [2008] NSWADT 263
Case
[2008] NSWADT 263
Decision Date

CaseChat Overview and Summary

In the matter of FI v Public Guardian, the parties involved were FI, the appellant, and the Public Guardian, the respondent. The nature of the dispute was a review of the decision to refuse to make an advance care plan, focusing on the extent of the power of the Public Guardian and whether the plan could include a provision for the withdrawal of life-sustaining treatment. The case was heard in the Administrative Appeals Tribunal of Australia. The legal issues the court had to decide included the scope of the Public Guardian's power under the Guardianship and Administration Act 2000 and the relevant considerations in making an advance care plan.

The court examined the statutory framework and the role of the Public Guardian, noting that the Guardianship and Administration Act 2000 provides the Public Guardian with the authority to make decisions on behalf of individuals who lack the capacity to make decisions for themselves. The court considered whether the Public Guardian's decision was within the scope of their authority and whether the relevant considerations were properly applied. It was established that the Public Guardian has the power to make decisions that are in the best interests of the individual, including decisions about medical treatment. The court found that the Public Guardian had not adequately considered the individual's wishes and values, which are crucial in making an advance care plan.

The court concluded that the Public Guardian's decision to refuse to make an advance care plan was flawed and did not properly consider the relevant factors. The court found that the Public Guardian had not adequately taken into account the individual's wishes and values, which are essential in making an advance care plan. As a result, the court remitted the decision back to the Public Guardian for reconsideration, with specific instructions to consider the individual's wishes and values. The court ordered that the Public Guardian report back to the Tribunal within two months, with an option for either party to apply for the application to be relisted ahead of the report date.

Orders

Orders of the court

1. On the preliminary question, the answer is at para [53] of these reasons. 2. Pursuant to s 65 of the Administrative Decisions Tribunal Act 1997, the application is remitted to the Public Guardian for reconsideration of the decision made 11 February 2008. 3. The Public Guardian is to report back to the Tribunal in relation to the result of the reconsideration not later than 2 months after the date of this decision. Registrar to fix a mention date for that report. 4. Either party may apply, on three days' notice, for the application to be relisted ahead of the date fixed under order 3.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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