Procedural History:
– First instance:
o 28th February 2003: Victorian Civil and Administrative Tribunal (“The Tribunal”) appointed Public Advocate to be limited guardian of BWV
– Current Situation:
o Supreme Court of Victoria has received a writ (“originating motion” (cite)) by the Public Advocate on behalf of BWV.
Facts:
– BWV (68-year-old female)- suffers from a “progressive and fatal form of dementia. She appears to be unconscious, lacks any cortical activity or cognitive capacity, and appears to have no conscious perception of input from any of her sensory pathways. BWV has no prospect of any recovery or any improvement in her condition.” Evidence of BWV’s current condition has been confirmed by Dr Michael Woodward, Dr Noel G Whitty, Professor Michael Ashby and Professor Malcolm Horne.
– BWV is being kept alive by a percutaneous endoscopic gastrostomy (“PEG”) (PEG administers patient with nutrition and hydration). Without the use of the PEG, the expected result for BWV is imminent death between one to four weeks.
– The plaintiff (Public Advocate) argues that the PEG constitutes as a medical treatment, which under the s 5B (2)(B) of the Medical Treatment Act 1998 states that “an agent or guardian may only refuse medical treatment on behalf of a patient if there are reasonable grounds for believing that the patient, if competent, and after giving serious consideration to his or her health and well-being, would consider that the medical treatment is unwarranted.”
– Plaintiff seeks to refuse any further nutrition and/or hydration administered by the PEG as a ‘medical treatment’ rather than ‘palliative care’ under the meaning outlined in s3 of the medical treatment act.
Issues:
Factual Issues:
– There are no factual issues in the case, as the factual issues raised; including whether the ongoing administration of the PEG is contrary or in abidance to the wishes of BWV are dependent on whether PEG is classified as ‘medical treatment’ or ‘palliative care’ within the Medical Treatment Act 1988 (s.3). DO I CITE HERE?
Legal Issues:
– Was the treatment and care of BWV through the administration of hydration and nutrition via a PEG equivalent to ‘medical treatment’ or ‘palliative care’ under the Medical Treatment Act 1988?
– If the treatment and care of BWV constitutes as ‘medical treatment’, could the Public Advocate, under the Medical Treatment Act 1988, refuse further provision and administration of hydration and nutrition via a PEG?
– Was the parens patriae alternative submission, made on behalf of the Attorney-General warranted and was it necessary to be used in court?
Reasoning/ Decision:
The Medical Treatment Act 1988 was referred to by the court and the judge in determining whether the administration and provision of hydration and nutrition via a PEG was a form of ‘medical treatment’ or ‘palliative care’. Primarily s 3 of the act, as it distinguished between the two definitions of the terms; ‘medical treatment’ and ‘palliative care’. Due to the limited and amorphous definitions of the terms outlined in the act, statutory interpretation was required from the court.
In addition, the court also referred the following sections outlined within the Medical Treatment Act 1988 to determine their decision:
A) Preamble
B) s 1- Purpose
C) s 4- Other legal rights not affected
D) s 5- Refusal of treatment certificate
E) s 5A- Agents and Guardians
F) s 5B- Refusal of treatment certificate by agent or guardian
G) s 6- Offence of medical trespass
H) s 7- Cancellation or cessation of certificate, and
I) s 9- Protection of registered medical practitioners.
Furthermore, the Guardianship and Administration Act 1986, with focus on s 16(1)(a) was used in the decision and appointment of the Public Advocate to be the guardian of BWV “with powers and duties limited to making decisions concerning her medical treatment”.
Ratio Decidendi:
In accordance to the issue of whether the provision of artificial nutrition and hydration via a PEG should be classified as ‘medical treatment’ or ‘palliative care’ under the Medical Treatment Act 1988, it was concluded that such treatment formed the definition of ‘medical treatment’. This result was established through research, professional guidance and statutory interpretation by the courts and Morris J, as well as the treatment of a PEG being classified as a ‘drug’. Hence, the Public Advocate, by law, can refuse the ongoing treatment of the PEG to BWV under the Medical Treatment Act.
Obiter Dicta:
– “…in my opinion, medical opinion as to whether or not the administration of nutrition and hydration through a PEG is, or is not, medical treatment is not directly relevant in the context of the Medical Treatment Act, because the expression “medical treatment”, when used in the Act, carries a special, statutory meaning.”
– “In my opinion, a medical procedure can generally be described as a procedure that is based upon the science of the diagnosis, treatment or prevention of disease or injury, or of the relief of pain, suffering and discomfort.”
– “…in my opinion the expression “palliative care”, standing alone, means care, not to treat or cure a patient, but to alleviate pain or suffering when a patient is dying. Indeed, palliative care extends to care for the relatives of the dying patient.”
– “In my opinion, the intent of Parliament in excluding the provision of food and water from the concept of medical treatment was to ensure that a dying person would have food and water available for oral consumption, if the person wished to consume such food or water.”
Order:
The judge declared that within the Medical Treatment Act 1988, the provision and administration of hydration and nutrition via the use of a PEG in the case of BWV was in fact ‘medical treatment’ rather than ‘palliative care’. Therefore, the treatment can, under the Medical Treatment Act 1988, by law, be refused by the limited guardian.