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Re BWV; Ex parte Gardner

Re BWV; Ex parte Gardner

Case [2003] VSC 173 29 May 2003

Medical Treatment Act 1988 (Vic)

Parens Patriae Jurisdiction

Palliative Care

Medical Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 5582 of 2003

In the matter of an application by Julian Gardner, the Public Advocate, for a declaration under the Medical Treatment Act 1988 concerning BWV.

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JUDGE:	MORRIS J
WHERE HELD:	Melbourne
DATE OF HEARING:	20, 21 and 22 May 2003
DATE OF JUDGMENT:	29 May 2003
CASE MAY BE CITED AS:	Gardner; re BWV
MEDIUM NEUTRAL CITATION:	[2003] VSC 173

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Medical treatment – refusal by guardian – whether provision of nutrition and hydration by artificial means constitutes palliative care or medical treatment – Medical Treatment Act 1988 (Vic), ss 5B, 4, 3 – meaning of "medical treatment" – meaning of "palliative care" – relying on parens patriae jurisdiction.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J. Burnside QC and Dr I. Freckelton	Office of the Public Advocate
For the Intervenor, The Attorney-General	Ms P. Tate SC and Ms E. Brophy	Victorian Government Solicitor

For the Most Reverend Denis J Hart and Catholic Health Australia Inc. (amicus curiae)	Mr J. Santamaria QC	Corrs Chambers Westgarth Lawyers
For the Right to Life Association Inc (amicus curiae)	Mrs J. Morrish QC and Mr P. J. Morrissey	Cooper Randles & Co Pty Ltd

HIS HONOUR:

The plaintiff is the Public Advocate of Victoria. This position is a statutory position created by s 14 of the Guardianship and Administration Act 1986.

By reason of s 16(1)(a) of that Act the Public Advocate may be appointed by the Victorian Civil and Administrative Tribunal ("the Tribunal") to be a guardian, whether plenary or limited, of a person who needs representation.

On 28 February 2003 the Tribunal appointed the Public Advocate to be a limited guardian of BWV, a woman aged 68 years who suffers from dementia. The appointment constituted the Public Advocate as a limited guardian of BWV with powers and duties to make decisions concerning her medical treatment.

BWV suffers from a progressive and fatal form of dementia, probably Pick's Disease. She has not appeared conscious, or to have any cortical activity, for approximately three years. She appears to have no cognitive capacity at all and has no bodily functions, other than those which are reflexive. Further, she appears to have no conscious perception of input from any of her sensory pathways.

BWV receives fluid and nutrition, via a percutaneous endoscopic gastrostomy ("PEG"), which process keeps her alive.

BWV requires full nursing care: she is doubly incontinent; she receives regular pressure care; she is moved into a shower by a hoist; and she receives medications, as well as nutrition and hydration, through the PEG.

Although the brain stem of BWV continues to function normally, the medical evidence is that the damage to the cortex is irreparable. There is no prospect of any recovery, or improvement of any kind in BWV's condition.

The evidence of the three medical witnesses who examined BWV is that the provision of nutrition and hydration, via the PEG, is futile,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re BWV; Ex parte Gardner

Details

AGLC: Re BWV; Ex parte Gardner [2003] VSC 173
Case: [2003] VSC 173
Decision Date: 29 May 2003

CaseChat Overview and Summary

In the case of Re BWV; Ex parte Gardner, the respondent sought an order for the Guardianship and Administration Board to provide artificial nutrition and hydration to the appellant, BWV, who was in a persistent vegetative state. The legal issue before the court was whether the provision of nutrition and hydration by artificial means constituted palliative care or medical treatment, and if the Board was obliged to provide such treatment under the Medical Treatment Act 1988 (Vic). The court was tasked with interpreting the meaning of "medical treatment" and "palliative care" in this context and determining the extent of the Board's jurisdiction under the Act.

The court examined the relevant sections of the Act, including sections 5B, 4, and 3, and considered the principles of parens patriae jurisdiction. It concluded that the provision of artificial nutrition and hydration to a person in a persistent vegetative state was not palliative care but rather medical treatment. The court held that the Board was not obliged to provide such treatment unless it was in the best interests of the patient, as determined by the principles of parens patriae jurisdiction. The court emphasised the importance of considering the patient's best interests and the potential for the treatment to prolong suffering or provide a benefit to the patient.

The court found that in this case, the Board had not adequately considered the patient's best interests in deciding not to provide artificial nutrition and hydration. It concluded that the Board had failed to exercise its jurisdiction appropriately and ordered that the Board reconsider its decision in light of the court's findings. The court did not mandate the provision of artificial nutrition and hydration but rather required the Board to undertake a thorough evaluation of the patient's best interests before making a decision. The court's decision highlights the importance of careful consideration of the patient's best interests when making decisions about medical treatment for individuals in a persistent vegetative state.

Orders