Citation:
Re BWV; Ex parte Gardner (2003) 7 VSC 487
Jurisdiction:
Supreme Court of Victoria Common Law Division
Single Judge: Morris J
Procedural History:
First instance: Victorian Civil and Administrative Tribunal
Present matter: Supreme Court of Victoria
Facts:
BWV suffers from a fatal form of dementia. BWV receives all sustenance through a percutaneous endoscopic gastrostomy (PEG). The Tribunal appointed the Public Advocate as a limited guardian of BWV, who after consulting with medical practitioners and BWV’s family concluded that the continued administration of ‘PEG’ would be unwarranted and unreasonable.An application was made through an originating motion and whilst no defendant was present throughout proceedings Right to Life Australia, The Most Reverend D J Hart and Catholic Health Australia INC were given leave to appear as amici curiae. The Public Advocate sought declarations distinguishing between “medical treatment” and “palliative care” within the Medical Treatment Act 1988 (Vic) s 3, 4, 5B. Specifically, PEG’s attributes being defined under medical treatment rather than palliative care would allow the Public Advocate to cease the provision of PEG on BWV, thereby causing BWV’s passing.
Issues:
Factual:
Whether the provision of artificial nutrition and water qualifies as “medical treatment” under the Medical Treatment Act 1988 (Vic)?
Legal:
That the terms “palliative care” and “medical treatment” be distinguished between within the Medical Treatment Act 1988 (Vic) s 3.
Reasoning:
The Supreme Court of Victoria was required to interpret the Medical Treatment Act 1988 (Vic) s 3, 4, 5B.
In interpreting this legislation, the Court applied the modern approach. This is evidenced by the identification of literal terms within the Medical Treatment Act 1988 (Vic) and therefore the definitions of “medical treatment” and “palliative care.” Furthermore, the purposes of the act are outlined, showing the enablement of a guardian to act on the behalf of an incompetent patient.
The Court in its judgments referred to the Minster’s Second Reading Speech thereby assisting the Court in reasoning the legislative history of the definition of palliative care. Additionally, the Australian Prescription Products Guide and the 2002 MIMS annual were both used by the Court to establish the prima facie medical treatment. Specifically, the qualities of Osmolite and its usage in PEG, differing it from basic nutrition seen in palliative care. The Publication by Dr Margaret Somerville The Ethical Canary, Science, Society And The Human Spirit is used by the Court to complement its interpretation of Parliament’s concept of palliative care. The Court asserted through Somerville’s work that Parliament had intended for a ‘dying person’ to have available sustenance rather than be forced such remedies.
In determining the definitional meaning of palliative care the Court applied the Latin Maxim principle noscitur a sociis. From this the Court drew comparisons between the language used in paragraph (a) and paragraph (b) of the act to contextualise artificial nutrition and hydration as a medical treatment. This Latin Maxim principle was implemented due to the questionable nature of the definition of palliative care under the Medical Treatment Act 1988 (Vic).
The Court granted leave to Right to Life Australia Inc, The Most Reverend D J Hart, Catholic Archbishop of Melbourne and Catholic Health Australia to produce amicus briefs. These parties provided substantive assistance to the Court’s reasoning due to the novelty of the matter. All parties appearing as amici curiae aided in the interpretation of the Medical Treatment Act 1988 (Vic) and helped the Court objectively form a view on the differing perspectives in relation to cases of this nature.
Ratio:
Any continual provision of artificial nutrition and or hydration qualifies as medical treatment under the Medical Treatment Act 1988 (Vic)
Obiter dicta:
1. “But, if the provision of food and water included artificial nutrition and hydration, it would not have been open for the patient to have refused such an operation pursuant to the Act unless it could be shown that such provision of nutrition and hydration was not reasonable.”
2. “… For my part, I believe the safeguards that have been put in place will prove to be appropriate in the overwhelming number of situations that will arise.” (in relation to medical guardians and potential manipulation of patients)
Order:
The provision of artificial nutrition and hydration via a percutaneous endoscopic gastronomy (“PEG”) was declared as a medical treatment within the Medical Treatment Act 1988 (Vic) and therefore the Court through the act enabled the Public Advocate, on behalf of BWV to decide when to cease the use of PEG.
Analysis:
The Court’s decision considered a range of interpretations of the Medical Treatment Act 1988 (Vic) provided by the parties who appeared as amici curiae. This demonstrates the Court’s objective stance, thereby strengthening the legitimacy of the Court’s declaration. Additionally the reference back to similar cases such as the Irish Case Re a Ward of Court substantiates the Court’s reasoning regarding artificial nutrition and hydration being defined as “medical treatment.” Conclusively the Court’s judgment in this matter can be seen as correct due to the cohesive approach undertaken by the Court.
In an instance such as this of potential law reform, any amendment to the Medical Treatment Act 1988 (Vic) would be undertaken with the purpose of providing clarity and further specifying the tenants of “palliative care” and “medical treatment.” One can argue that a reform targeting a definition within a statute could be perceived as unnecessary and limit the Court’s use of discretion. Additionally the Act clearly outlines a set of definitions for both terms. Further describing such definitions within the Act could result in a heightened level of ambiguity.
This case has had major significance in the role of the Court’s interpretation of untreatable diseases. Specifically, the declaration of artificial nutrition and hydration being provisioned through a device such as PEG coming under “medical treatment.” This was of judicial relevance to the Australian Capital Territory, where the similar Medical Treatment Act 1994 (ACT) was repealed in 2007 due to issues concerning the effectiveness of the Act.