FI v Public Guardian

[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an advance care plan or palliative care plan for a protected person that permits life-sustaining treatment to be withdrawn.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…