WK v Public Guardian (No 2)

[2006] NSWADT 121

CITATION:	WK v Public Guardian (No 2) [2006] NSWADT 121
DIVISION:	General Division
PARTIES:	APPLICANT WK RESPONDENT Public Guardian
FILE NUMBER:	063131
HEARING DATES:	11/04/06
SUBMISSIONS CLOSED:	04/11/2006
DATE OF DECISION:	04/20/2006
BEFORE:	Hennessy N - Magistrate (Deputy President)
CATCHWORDS:	Guardianship Act - Public Guardian - consent to medical or dental treatment - Guardianship Act - Public Guardian - health care - Public Guardian - consent to medical or dental treatment - Public Guardian - health care
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Guardianship Act 1987 Guardianship Regulation 2005
CASES CITED:	Airedale National Health Service Trust v Bland [1993] AC 789 Isaac Messiha (by his tutor Magdy Messiha) v South East Health [2004] NSWSC 1061 (11 November 2004) Northbridge v Central Sydney Area Health Service [2000] NSWSC 1241 WK v Public Guardian [2006] NSWADT 93
REPRESENTATION:	APPLICANT In person RESPONDENT C Phang, solicitor
ORDERS:	In accordance with s 65 of the Administrative Decisions Tribunal Act, the decisions are remitted to the Public Guardian for reconsideration.

Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision.

Section 126 provides

(1A) This section applies only to the following:


(a) proceedings in the Community Services Division of the Tribunal,

(b) appeals to an Appeal Panel from a decision made by the Tribunal in the Community Services Division,

(b1) proceedings in relation to an external appeal made under section 67A of the Guardianship Act 1987 or section 21A of the Protected Estates Act 1983,

(b2) proceedings in relation to a reviewable decision made under the Guardianship Act 1987 or the Protected Estates Act 1983

(c) such other proceedings (or class or classes of proceedings) as may be prescribed by the regulations for the purposes of this section.


(1) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person:

(a) who appears as a witness before the Tribunal in any proceedings, or

(b) to whom any proceedings before the Tribunal relate, or

(c) who is mentioned or otherwise involved in any proceedings before the Tribunal,


whether before or after the proceedings are disposed of.

Maximum penalty: 10 penalty units or imprisonment for 12 months, or both.

(2) This section does not prohibit the publication or broadcasting of an official report of the proceedings that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section.

(3) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

REASONS FOR DECISION

Introduction

1 Mr X is a 73 year old man who has been a patient at Prince of Wales Hospital since 10 October 2005. Although he used to have a limited command of English, he now requires a Greek interpreter to communicate. He has end stage kidney disease and is receiving haemodialysis. He also suffers from dementia. In late November 2005, Mr X’s treating doctor, Professor Pussell, met with Mr X’s sister in law and nephew to discuss Mr X’s treatment and prognosis. After several meetings, a decision was made to stop the dialysis, however on 2 December 2005, the nephew’s business partner, who is the applicant in these proceedings, contacted Professor Pussell expressing his concern about that decision. A conference was convened the same day and Professor Pussell decided not to stop the dialysis and instead to apply to the Guardianship Tribunal for the appointment of a guardian for Mr X.

2 On 23 December 2006, the Guardianship Tribunal appointed the Public Guardian to be Mr X’s guardian and gave him functions including decisions about health care and consent to medical and dental treatment.

Health Care

To determine what health care and major and minor medical and dental treatment Mr X may receive.

Medical and Dental Consent

Where Mr X is not capable of giving valid consent to his own treatment, to make substitute decisions on his behalf about medical or dental treatment proposed for him by others under the provisions of Part 5 of the Guardianship Act.

3 On 14 February 2006, the Guardianship Tribunal reviewed that decision and renewed the orders for 12 months. On 27 March 2006 the Public Guardian decided to consent to the palliative care management plan developed by the Renal Team and Palliative Care Team of Prince of Wales Hospital (“the decision”). Part of the management plan was expressed to be the termination of haemodialysis. If that happens, Mr X will die within a period of approximately two weeks. The decision was to take effect on 1 April 2006.

4 On 28 March 2006, the applicant lodged an application with the Administrative Decisions Tribunal (the Tribunal) for a review of the Public Guardian’s decision and a stay of that decision. The stay application was listed for hearing the following day, 29 March 2006. The Tribunal decided that the applicant had standing to apply for a review of the Public Guardian’s decision and that a stay of the decision should be granted. (WK v Public Guardian [2006] NSWADT 93.) On 11 April 2006 the hearing on the substantive application took place. The applicant appeared without legal representation. Ms Phang, solicitor, represented the Public Guardian.

The decision

5 The decision under review was expressed by the Public Guardian as being a decision to consent to the following treatment plan in relation to Mr X:

Ultrafiltration and medications to manage his cardiac and renal conditions and prevent pulmonary oedema (Omeprazole 20 mg d.d., Caltrate 2 tabs 3 t.d.s., Paracetamol q.i.d., Sodibic 1 tab d.d., Folate d.d., Vitamin B d.d., Anginine PRN, MagMin 2 tabs d.d.)

Medications to control pain, anxiety and agitation and excessive oral secretions (Morphine 2.5 – 10 mg four-hourly PRN, Midazolam 2.5 – 10 mg four hourly PRN, Risperidone 0.5 mg mane, 1 mg nocte, Risperidone 0.5 mg PRN, Haloperidol 2.5 mg PRN, Hyoscine 0.4 mg four-hourly, PRN)

Full nursing care to assist with personal care, bowel care, bladder care and pressure care

Withdrawal of dialysis treatment.

No further aggressive treatments, including cardio-pulmonary resuscitation or intubation when he dies.

Regular review by the Renal Team and Palliative Care Teams to ensure optimal symptom control

6 That treatment plan is based on reports by Professor Bruce Pussell dated 9 February 2006, Dr Sara Rendo dated 4 January 2006 and Dr Andrew Roy dated 14 March 2006.

Powers of the Public Guardian

7 The critical question arising in these proceedings is whether the Public Guardian, as Mr X’s substitute decision maker, has power to consent to “end-of-life” decisions, such as the withdrawal of dialysis and the making of a “not for resuscitation” direction. The Public Guardian’s powers are derived from the functions given to him by the Guardianship Tribunal. There is nothing in Guardianship Act which defines or limits the functions which the Guardianship Tribunal can give to the Public Guardian. Under s 21(2) and (2A)

(2) Subject to any conditions specified in the order, the guardian of a person the subject of a limited guardianship order:
(a) has custody of the person, to the exclusion of any other person, to such extent (if any) as the order provides, and

(b) has such of the functions of a guardian of that person’s person, to the exclusion of any other person, as the order provides.

(2A) Subject to any conditions specified in the order, the guardian of a person the subject of a guardianship order (whether plenary or limited) has the power, to the exclusion of any other person, to make the decisions, take the actions and give the consents (in relation to the functions specified in the order) that could be made, taken or given by the person under guardianship if he or she had the requisite legal capacity.
8 In this case, the functions the Guardianship Tribunal gave the Public Guardian were a health care function and a medical and dental consent function. Those functions are set out above at [2]. The Public Guardian has the power, in relation to those functions, to make the decisions, take the actions and give the consents that could have been made by Mr X if he had capacity. The Public Guardian is not entitled to make every decision that Mr X could have made. He can only make the decisions, take the actions and give the consents that relate to the functions specified in the Guardianship order.

9 The first function the Guardianship Tribunal gave to the Public Guardian was the health care function which allows the Public Guardian to determine what health care and major and minor medical and dental treatment Mr X may receive. The decision to consent to the withdrawal of dialysis treatment is not a decision about what major or minor medical treatment he may receive. The term “health care” is a general term. While it is possible that it could include consenting to “end-of-life” decisions, I am reluctant to give it such a broad interpretation in the absence of some clear indication that that is what the Guardianship Tribunal intended.

10 The Public Guardian also has a medical consent function in relation to Mr X. That function allows the Public Guardian to make substitute decisions on behalf of Mr X about medical treatment that is proposed for him by others under Part 5 of the Guardianship Act. Part 5 allows any person to apply to the “person responsible” (in this case the Public Guardian) or to the Guardianship Tribunal for consent to the carrying out of medical or dental treatment on the patient. (See s 40 and s 42 of the Guardianship Act.) In this case Mr X’s treating doctors applied to the Public Guardian under Part 5. By virtue of the “consent to medical treatment” function given to it by the Guardianship Tribunal, the Public Guardian has power to consent, or not to consent, to the proposed medical treatment. The term “medical treatment” is relevantly defined in s 33 to mean

(a) medical treatment (including any medical or surgical procedure, operation or examination and any prophylactic, palliative or rehabilitative care) normally carried out by or under the supervision of a medical practitioner, or

(b) dental treatment (including any dental procedure, operation or examination) normally carried out by or under the supervision of a dentist, or

(c) any other act declared by the regulations to be treatment for the purposes of this Part

11 The Guardianship Regulation 2005 (NSW) do not declare any other act to be treatment for the purposes of Part 5 of the Act. The definition of “medical treatment” includes “palliative care”. However, the ordinary meaning of the words in s 33 defining “medical treatment”, are not sufficiently broad to encompass the withdrawal of life sustaining treatment. That conclusion is supported by the objects Part 5 set out in s 32, which are:
(a) to ensure that people are not deprived of necessary medical or dental treatment merely because they lack the capacity to consent to the carrying out of such treatment, and

(b) to ensure that any medical or dental treatment that is carried out on such people is carried out for the purpose of promoting and maintaining their health and well-being.

12 A decision to withdraw life sustaining medical treatment, is not a decision carried out for the purpose of promoting and maintaining the health and well being of a person. These objects and the definition of “medical treatment” in s 33, lead to the conclusion that while the Public Guardian may consent to treatment which will prolong the life of a person, there is no power to consent to the withdrawal of treatment that will result in a person’s death.

13 Nevertheless, the Public Guardian has interpreted his functions as extending to giving consent to end-of-life decisions. That is apparent from the fact that the decision in relation to Mr X is characterised as consenting to a treatment plan which includes withdrawal of dialysis and a “not for resuscitation” direction. It is also apparent from the literature produced by the Public Guardian. In a Position Statement entitled “Responding to applications for consent to proposed treatment and care for a person who is critically or terminally ill”, the Public Guardian says:

Medical consent application may be received concerning treatment for people under guardianship of the Public Guardian which have the potential to directly affect the timing of a person’s death and/or the person’s quality of life immediately before death. These applications include requests for consent to treatment plans, which may include:
Palliative care only;

Pain relief or sedation which may have the side-effect of hastening death;

Inclusion of ‘not for cardiopulmonary resuscitation” on a patient’s file;

Withholding treatment which would, if administered, prolong life.

14 A similar approach to that taken by the Public Guardian is evident in “Guidelines for end-of-life care and decision making” issued by NSW Health in 2005 (the Guidelines). The purpose of the Guidelines is to set out a process for reaching end-of-life decisions. Under the heading “Options for resolving disagreement” at 6.5, the Guidelines refer to the Guardianship Tribunal and state that:
The Guardianship Tribunal may provide advice in relation to end-of-life care for patients lacking decision-making capacity. Advice may include whether it is appropriate for the Tribunal to deal with an application for consent to a proposed treatment on behalf of such a patient.

As palliative care is a medical treatment under Part 5 of the Guardianship Act, consent may be sought for it to be provided to replace more active treatment. (Emphasis added.)

15 In my view, a power to consent to palliative care does not include a power to consent to withholding treatment which would, if administered, prolong life. If Parliament had intended to give the Guardianship Tribunal (and the Public Guardian) such a significant power, it would have done so expressly. Although the applicant has not made an application to the courts, the Supreme Court and other superior courts, have the power under the parens patriae jurisdiction to make such decisions. For example, in Airedale National Health Service Trust v Bland [1993] AC 789 the House of Lords decided (at 859 per Lord Goff; at 876 per Lord Lowry and at 882 per Lord Browne-Wilkinson) that Anthony Bland’s existence in a persistent vegetative state was not a benefit to him and it was not in his best interests to continue life-sustaining treatment. More recently and closer to home, the Supreme Court (Howie J) decided in December 2004 that a 75 year old patient in a deep coma should not continue to receive treatment because there was no realistic prospect of a meaningful recovery. ( Messiha v South East Health [2004] NSWSC 1061.) In Northbridge v Central Sydney Area Health Service [2000] NSWSC 1241, the Supreme Court (O’Keefe J) decided that treatment should be continued in relation to a 37 year old patient who was unconscious as a result of a drug overdose.

16 The Public Guardian has, in fact, made three decisions: a decision to withdraw consent for dialysis; a decision not to give consent for any aggressive treatments such as cardio-pulmonary resuscitation and intubation and a decision to consent to palliative care. I doubt that he had the power to make the first two decisions. The next question is whether this Tribunal has jurisdiction to review any of those decisions.

Tribunal’s jurisdiction

17 I decided in the stay decision (WK v Public Guardian [2006] NSWADT 93) that this Tribunal did have jurisdiction and that the applicant had standing. While I do not intend to re-visit the standing issue, the question of jurisdiction requires reconsideration in view of my finding that the Public Guardian has no power to make two of the three decisions he purported to make. The Tribunal’s jurisdiction derives from s 38 of the Administrative Decisions Tribunal Act 1997 (ADT Act) which states that:

The Tribunal has jurisdiction under an enactment to review a decision (or a class of decisions) if the enactment provides that applications may be made to it for a review of any such decision (or class of decisions) made by an administrator:
(a) in the exercise of functions conferred or imposed by or under the enactment, or

(b) in the exercise of any other functions of the administrator identified by the enactment.

Note : Section 5 defines "enactment" to mean:
(a) in relation to a reviewable decision—an Act (other than this Act) or a statutory rule (other than a statutory rule made under this Act), or

(b) in any other case—an Act (other than this Act).

18 Section 80A(1) of the Guardianship Act gives the Tribunal jurisdiction in the following circumstances:
(1) An application may be made to the ADT for a review of a decision of the Public Guardian that:
(a) is made in connection with the exercise of the Public Guardian’s functions under this Act as a guardian, and

(b) is of a class of decision prescribed by the regulations for the purposes of this section.

19 All decisions made by the Public Guardian in connection with the exercise of his functions are prescribed for the purposes of section 80A of the Act. (See Cl 17 of the Guardianship Regulation 2005.) The decision to consent to palliative care is a decision that was within the power of the Public Guardian to make and consequently within the jurisdiction of the Tribunal to review.

20 Although the Tribunal’s jurisdiction only extends to reviewing decisions made “in connection with the exercise of the Public Guardian’s functions”, s 6(2) and (3) of the ADT Act give the Tribunal power to review a decision even if that decision was made beyond power. Those provisions states that:

(2) Decision made under an enactment

For the purposes of this Act, a decision is made under an enactment if it is made in the exercise (or purported exercise) of a function conferred or imposed by or under the enactment.

(3) Decisions made without power

For the purposes of this Act (and without limiting subsection (2)), a decision that purports to be made under an enactment is taken to be a decision made under the enactment even if the decision was beyond the power of the decision-maker to make it.

21 I am satisfied that s 6(2) gives the Tribunal jurisdiction to review the two decisions made by the Public Guardian even if they were beyond power. Nevertheless, I am reluctant to conduct a merits review of the decisions in circumstances where I doubt that the Public Guardian had power to make those decisions. In view of these difficulties, I have decided to remit the matter to the Public Guardian pursuant to s 65 of the ADT Act. That sections provides that:
(1) At any stage of proceedings to determine an application for a review of a reviewable decision, the Tribunal may remit the decision to the administrator who made it for reconsideration of the decision by the administrator.

(2) If a decision is so remitted to an administrator, the administrator may reconsider the decision and may:

(a) affirm the decision, or

(b) vary the decision, or

(c) set aside the decision and make a new decision in substitution for the decision set aside.

(3) If the administrator varies the decision:
(a) the application is taken to be an application for review of the decision as varied, and

(b) the person who made the application may either:

(i) proceed with the application for review of the decision as varied, or

(ii) withdraw the application.

(4) If the administrator sets the decision aside and makes a new decision in substitution for the decision set aside:

(a) the application is taken to be an application for review of the new decision, and

(b) the person who made the application may either:

(i) proceed with the application for review of the new decision, or

(ii) withdraw the application.

22 I recommend that the Public Guardian seek clarification of the scope of his powers from the Guardianship Tribunal. That could be done by way of a review of the guardianship order pursuant to s 25 of the Guardianship Act. If it is clear as a result of that review that the Guardianship Tribunal intended to give the Public Guardian the function of giving consent to end-of-life decisions, then the Public Guardian may decide to affirm the decision. If that happens, it will be up to the applicant to decide whether proceed with the application. Alternatively the applicant may wish to seek a remedy in the Supreme Court.

Orders

In accordance with s 65 of the Administrative Decisions Tribunal Act, the decisions are remitted to the Public Guardian for reconsideration.