LE and LF v Public Guardian

[2009] NSWADT 78

CITATION:	LE and LF v Public Guardian [2009] NSWADT 78
DIVISION:	General Division
PARTIES:	APPLICANTS (1) LE (2) LF RESPONDENT Public Guardian
FILE NUMBER:	083385
HEARING DATES:	1 April 2009
SUBMISSIONS CLOSED:	1 April 2009
DATE OF DECISION:	9 April 2009
BEFORE:	O'Connor K - DCJ (President)
CATCHWORDS:	GUARDIANSHIP – Review of Decisions of Public Guardian – Protected Person in state of Post-Coma Unresponsiveness – Advance Care Plan – Withdrawal of Life Support – Refusal of Alternative Treatment Proposal – Conflicting Wishes of Family Members – Legal and Ethical Considerations – Decisions Affirmed
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Guardianship Act 1987
CASES CITED:	Airedale National Health Service; Auckland Area Health Board v Attorney General [1993] 1 NZLR 235 FI v Public Guardian [2008] NSWADT 263 Gardner; re BWV [2003] VSC 173 Hunter Area Health Service v Marchlewski (2000) 51 NSWLR 264 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 ZS and ZT v Public Guardian [2007] NSWADT 57
REPRESENTATION:	APPLICANTS In person RESPONDENT E Boyle of counsel / E Mee, Crown Solicitor's Office
ORDERS:	1. Application for review dismissed. 2. Decisions under review affirmed.

1 Mr A was severely injured on 3 June 2005 as a result of an accident that occurred while fishing from the rocks. He almost drowned. While he survived, he has hypoxic brain damage (i.e. inadequate availability of oxygen).

2 Mr A has been assessed as being in a state of post-coma unresponsiveness (a term that is now used in preference to the term, persistent vegetative state). He receives 24-hour nursing care. He is being kept alive by artificial means. He is a patient in a nursing home.

3 He was born on 11 October 1961 and is now aged 47 years. He migrated to Australia with his wife, W, and son S in 1996. S is now 20 years old.

4 The Guardianship Tribunal (the Tribunal) has made a financial management order allowing Ms W to manage Mr A’s financial affairs. The Tribunal has appointed the Public Guardian as his guardian with responsibility for making various decisions in relation to his accommodation and health needs, including ‘to make end of life health care decisions, including advance care planning decisions’.

5 The function of this Tribunal, the Administrative Decisions Tribunal (the ADT) is to review certain decisions made by government officials and government agencies in New South Wales and to decide whether they are the correct and preferable ones in the circumstances. Decisions made by the Public Guardian in relation to the care of persons under guardianship are among the decisions that the ADT may review. See Guardianship Act 1987, s 80A; Administrative Decisions Tribunal Act 1997, s 38, s 63.

The Application for Review

6 Mr A’s niece, Ms LF, and her husband, Mr LE, applied on 24 December 2008 to the ADT requesting it to review two decisions of the Public Guardian and asking that they be varied or set aside. The first is a decision to approve an advance care plan, which provides for cessation of feeding in certain circumstances; and the second is a related decision rejecting a proposal from several members of his family for him to be relocated to China for treatment. Mr A’s wife, Ms W, and her son, S, strongly support the decisions of the Public Guardian.

The Decisions Under Review

7 The Alternative Treatment Proposal: In a decision first formally made on 30 September 2008 the Public Guardian decided that Mr A should not travel to China to receive the treatment outlined in a proposal titled ‘Treatment prescription of post-coma unresponsiveness’, dated 4 November 2007, Neurosurgery Centre, People’s Liberation Army (PLA), Hospital No 422, Guangzhou Military Area. The decision was confirmed on internal review. The internal review decision is dated 21 November 2008.

8 The Palliative Care Plan: In a decision first formally made on 17 October 2008 the Public Guardian consented to the Palliative Care Plan dated 19 October 2007 prepared by Associate Professor Paul Glare, Palliative Care Physician, Royal Prince Alfred Hospital, Camperdown. The decision was confirmed on internal review. The internal review decision is dated 29 January 2009.

9 The Public Guardian consulted all medical practitioners familiar with Mr A’s case, obtained ethical advice, and took account of the wishes of Mr A’s relatives. The plan includes provision for a decision not to reconnect or unblock a feeding tube, the percutaneous endoscopic gastronomy (PEG) tube, the next time it becomes blocked.

10 In his advice to the Public Guardian, Professor Glare stated:

‘When that event occurs, it is expected that Mr A will die a short time later (days to weeks) from lack of intake of food and water, most likely from dehydration. During this period, only palliative care will be provided. This is to ensure his comfort and dignity are maintained during that period.’

11 The ADT held a hearing on 1 April 2009. Ms LF and Mr LE appeared at the hearing and made submissions. Ms LF had the assistance of a Chinese interpreter.

12 The Public Guardian was represented at hearing by Ms Elizabeth Boyle, barrister.

13 The Public Guardian filed two bundles of documents for consideration by the ADT.

14 The first bundle filed 9 February 2009 includes: the Guardianship Tribunal orders; the two primary decisions and the two internal review decisions, and the accompanying reasons. The bundles also include medical and related reports from: Dr Stephen R Buckley, Consultant Physician in Rehabilitation Medicine; Dr David Sharpe, Consultant Neurologist; Dr Abi Walton, Registrar in Palliative Care; Dr Lucy Morgan, Consultant Thoracic Physician; Dr Michael Hayes, Senior Staff Specialist, Neurology Department, Concord Repatriation General Hospital; Lesley Townsend, Secretary, Ethics of Clinical Practice Sub-Committee, Royal Prince Alfred Hospital; and Dr Paul Glare, Associate Professor and Senior Staff Specialist Physician, Royal Prince Alfred Hospital. The bundle includes records of the wishes and views of Mr A’s wife and son; and records of the wishes and views of Mr A’s mother and father and other relatives, including those already mentioned above. There are also two letters from Yifan Yang of Sussex Chinese Medicine.

15 The second bundle filed 1 April 2009 includes: a further record of the wishes and views of Mr A’s son, a record of a telephone conversation with Dr Xie Pei Zeng, Neurologist at Hospital No 422 dated 21 December 2007.

16 The Public Guardian also filed written submissions and copies of two ADT decisions, ZS and ZT v Public Guardian [2007] NSWADT 57 and FI v Public Guardian [2008] NSWADT 263. She also referred to the Australian Government’s National Health and Medical Research Council document, Ethical Guidelines for the Care of People in Post-Coma Unresponsiveness (Vegetative State) or a Minimally Responsive State (2008).

Background

17 One of the factors that had caused the Tribunal to make its original decision on 16 September 2006 to appoint the Public Guardian for 12 months in relation to the care needs of Mr A was the stress and pressure Mr A’s wife, Ms W, was under over the dispute that existed within the family over Mr A’s future treatment options.

18 On 9 October 2007 the Guardianship Tribunal continued in force the order made on 16 September 2006 for a further term of 3 years. The new order included an extra term allowing the Public Guardian to make end of life decisions. The Tribunal’s reasons for its decision deal at length with the different wishes of Mr A’s relatives in that regard, and the medical and ethical opinions in support of establishing an advance care plan of the kind that has now been developed.

19 In that decision the Tribunal considered the recommendation of Dr David Sharpe, consultant neurologist, as to the future management of Mr A’s health. Dr Sharpe expressed the opinion that continued feeding of Mr A would be ultimately futile. In Dr Sharpe’s opinion, Mr A will die as a result of complications that will set in as a consequence of his severe and diffuse brain damage. He advised that there were no indications that Mr A would ever recover, or improve a little. In reaching its decision to allow the Public Guardian to make end of life decisions, including advance care planning decisions, the Tribunal referred to Dr Sharpe’s recommendation that Mr A be fed in future by means of a percutaneous endoscopic gastronomy (PEG) tube, rather than by a nasogastric tube.

20 The Guardianship Tribunal referred to an ethical ruling that the Public Guardian had obtained from the relevant ethics committee at the Royal Prince Alfred Hospital. The specific issue was whether it would be ethical not to replace the PEG tube or the nasogastric tube the next time there was a blockage or other matter warranting consideration of replacement. The ruling was that it would be ethically acceptable on that basis that further treatment of Mr A is futile.

The Proposed Alternative Treatment

21 The alternative proposal is set out at point 3.2.2 of the first bundle of documents. It has the following major elements:

1. hyperbaric oxygen treatment (potentially up to 200 treatments);

2. stimulation (using social stimulation via for example family members’ voices, and electrical forms of stimulation to parts of the body);

3. drug treatment; injection through the carotid artery;

4. traditional medicine (including acupuncture; Chinese crude drugs);

5. physical therapy; functional exercise; and psychological treatment upon recovery of some consciousness; and

6. precautions against complications.

22 The plan is the subject of a written opinion from Dr Stephen Buckley (at point 3.2.1 of the bundle). He is a leading practitioner in rehabilitation medicine, who has substantial experience and expertise in managing acute trauma patients (brain and orthopaedic injuries). His achievements include being President of the Australasian Faculty of Rehabilitation Medicine. He has assessed Mr A in the company of Mr A’s wife and son, and the two applicants as well as another niece, N.

23 The following is a summary of Dr Buckley’s assessment of the alternative treatment proposal:

- As to 1, this treatment is unlikely to do any harm, but there is no evidence that this treatment improves the vegetative state.

- As to 2, there are significant risks in direct stimulation of the nerves and spinal cord, and high intensity stimulation carries a high risk of pain. Social stimulation can be provided at any location, and for that purpose removal to another location is not required.

- As to 3, there is an absence of scientific evidence as to the value of the drug treatments suggested, including as to possible side effects.

- As to 4, injection through the carotid artery is a high risk procedure, for which there is an absence of scientific evidence as to its usefulness.

- As to 5, the traditional medicine proposed could be provided at the present location. There is no evidence as to how effective the techniques and medicines proposed would be. The value of functional exercises is doubted given the lack of any scientific evidence as to their effectiveness.

- As to 6, this is a usual aspect of medical care. The care being given presently is adequate in that regard.

24 Dr Buckley concluded:

‘As a result of careful analysis of the plan …, there are no treatments that could not be undertaken in Australia, apart from the fact that Australia would have ethical problems in applying all the treatments because of the lack of scientific data, the risk of side effects or pain, or other even worse complications. I do not believe that it would be appropriate for Mr A to be transferred to China for these treatments.’

25 The applicants have not put any evidence before the ADT that might contradict Dr Buckley’s assessment. In these circumstances, the ADT must I consider accept Dr Buckley’s assessment. It is a careful assessment by an expert in the management of cases of Mr A’s type, and it is in my view persuasive.

Family Wishes

26 The Guardianship Act emphasises the importance of having regard to the wishes of the individual and, if they can not be ascertained, the wishes of next of kin and relatives in making health care and treatment decisions. Differences of opinion, as have occurred here, will sometimes exist among those who love and care for the person whose needs are being assessed about what is best.

27 Mr A is not able to express any wishes of his own in this matter. His wife’s belief, based on what Mr A had said to her in the past, was that Mr A would not wish to be kept alive by artificial means if he had lost brain function and any ability to enjoy life. Further, his wife and son, as noted, have expressed strong support for the Public Guardian’s decisions.

28 The Guardianship Act indicates that greater weight is to be accorded to the views of the spouse and the immediate family as compared to the wider family: see Guardianship Act, s 14(2), s 33A(4) and the decision in ZS and ZT v Public Guardian [2007] NSWADT 57 at [6]-[8]. In this instance the spouse’s wishes are clear, as is the son’s.

29 Members of Mr A’s Chinese family have visited him frequently since he has been in care. At hearing it was apparent that his niece was very concerned for his welfare, and distressed at the likely consequence of the plan approved by the Public Guardian.

30 She questioned the extent to which Ms W had visited her husband as compared to her side of the family. The material filed included statements from treating doctors and staff of the nursing home that indicated Ms W and her son had been frequent visitors over many years.

Decision

31 The law governing the exercise of the Public Guardian’s powers requires the Public Guardian to make decisions that are in the best interests of the protected person, in this instance Mr A. The best interests of a protected person may include the making of decisions for a palliative care plan which may in certain circumstances have the consequence that death will ensue. The law does not require the taking of extreme or extraordinary measures to preserve life in cases of the present type.

32 A statement of the law is set out in the decision, FI v Public Guardian [2008] NSWADT 263. See, for example, paragraphs [46] and [48]:

‘46 In the case of unconscious or incompetent patients, the duties imposed on medical practitioners to provide treatment (including life-sustaining treatment) rest on consideration of what is in the patient’s best interests for the purpose of preservation of life. But the law recognises that clinical judgments are involved, and that there is no need to continue treatments which are therapeutically ineffective, or are extraordinary, excessively burdensome, intrusive or futile. The law does not assume that a patient’s best interests are served by extending the patient’s life by whatever means are available and for as long as possible. As to these principles see, variously, Northbridge v Central Sydney Area Health Service (2000) 50 NSWLR 549 at 553-554; Airedale National Health Service ; Auckland Area Health Board v Attorney General [1993] 1 NZLR 235 at 252-253; Re G [1997] 2 NZLR 201; Messiha v South East Health [2004] NSWSC 1061 at [22]-[28]; Hunter Area Health Service v Marchlewski (2000) 51 NSWLR 264 at 268 [91].

…

48 The higher courts in several jurisdictions in the last twenty years have dealt with the choices that may be made by appropriate persons in relation to the health care of patients who are unable to make their own decisions. It is now established that it is a permissible exercise of the ‘parens patriae’ jurisdiction that inheres in the superior courts to authorise care choices which may extend to the withdrawal of treatment under certain conditions: see Airedale NHS Trust v Bland [1993] AC 789 (HL), esp at 864 per Lord Goff of Chieveley, and at 894 per Mustill LJ; Northbridge v Central Sydney Area Health Service [2000] NSWSC 1241, esp at [24] per O’Keefe J; and Messiha v South East Health [2004] NSWSC 1061 (Howie J). See also, Gardner; re BWV [2003] VSC 173 (Morris J); Public Advocate v RCS (Guardianship) [2004] VCAT 1880 (Morris J, President); and Re Korp (Guardianship) [2005] VCAT 779 (Morris J, President).’

33 In my view the correct and preferable decision in the circumstances of this case is to affirm the Public Guardian’s two decisions. The alternative treatment proposal has little scientific validation, would involve exposing Mr A to increased risks of harm and separate him for a prolonged period of time from his closest family members. The advance care plan including its provision not to reconnect or unblock the PEG tube the next time there is a blockage or other matter warranting consideration of replacement is reasonable in the circumstances. It is consistent with the law, including ethical considerations. Both decisions are consistent with the wishes of Mr A’s closest family members.

34 The applicants asked that if the Tribunal, as it now has, decided to uphold the Public Guardian’s decision, that steps be taken to assist Mr A’s China-based family members in obtaining prompt access to visas so that they can visit him again before any action is taken to implement the plan. Ms Boyle for the Public Guardian advised that the Public Guardian would be prepared to assist in that regard, and communicate with the immigration authorities as desired.

35 The Public Guardian also agreed to supply the family members with a Chinese translation of these reasons for decision. The version published on the Tribunal’s internet site will, in accordance with usual practice, not use the actual names of the protected person, the applicants and other family members.

Order

1. Application for review dismissed.

2. Decisions under review affirmed.