Citation
Re BWV; Ex parte Gardner (2003) 7 VR 487
Jurisdiction
Supreme Court of Victoria, Single Judge: Morris J
Procedural History
First instance – Victorian Civil and Administrative Tribunal
Present Matter – Supreme Court of Victoria
Facts
BWV is a 68-year-Old women who for 3 years has suffered from a progressive and fatal form of dementia. She appears unconscious, void of any cognitive capacity and is unable to recognise any input from her sensory pathways.
BWV is only able to receive nutrition and hydration through a percutaneous endoscopic gastronomy (PEG), a medical procedure that involves a tube which passes into the patient’s stomach through their abdominal. It is a process which merely keeps BWV, and offers no prospect of improvement or recovery.
The Victorian Civil and Administrative Tribunal appointed The Public Advocate of Victoria (Plaintiff) as BWV’s limited guardian in 2003. He is therefore responsible for all decisions concerning her medical treatment.
Through the consultation of BMV’s immediate family, The Public Advocate concluded that the continuation of PEG would be in contrast to the wishes of BWV. As a result, the Public Advocate applied to the Supreme Court for two declarations: That the use of PEG constituted as Medical Treatment in accordance with s 3 of the Medical Treatment Act 1988 (No 41); The discontinuation of PEG usage would be lawful as it is deemed the refusal of medical treatment and not palliative care.
Issues: Identify any factual or legal issues in contention.
A key legal issue of the case was the interpretation of the words used within the definitions of both medical treatment and palliative care within the Act.
With regard to the decided meanings of the terms ‘palliative care’ and ‘medical treatment’, the Judge was required to either make the sought-out declarations as requested by the public advocate, or to decline them in a manner which was absolute or because it would be more ideal that the court rule in accordance with its ‘Parens patriae’ jurisdiction (power of the state to act as the parent of any child or individual in need of protection).
Reasoning
Legislation
The application made by the Public Advocate arose in the context of the Medical treatment act 1988 (Vic), and thus the Court required an interpretation the acts entire context and needed to understand specific provisions in accordance with the entire purpose of the act.
The court found a number of sections which required interpretation: Section 3 contained definitions of both Medical Treatment and Palliative care which were crucial in understanding, as it would determine whether the discontinuation of PEG constituted as the refusal of palliative care or medical treatment; Section 4 of the act confirmed that the act doesn’t apply to palliative care. If the court interpreted the PEG procedure to be palliative care, the medical treatment act would not have been applicable; Section 5B required interpretation as it would determine whether or not the Public advocate could choose to refuse BVW’s medical treatment.
Modern Interpretation
Through its interpretation of statutes in accordance with rules made by parliament, namely the Interpretation of Legislation Act 1984 (Vic), The court applied the modern approach to statutory interpretation.
The Interpretation Act speaks of giving effect to the purpose of the legislation ‘Where in an Act reference is made to a rule, the reference shall, unless the context otherwise requires, be construed as a reference to a rule, contained in a subordinate instrument made or to be made under or pursuant to the provisions of the Act in which the reference occurs’.
The use of the modern approach is evident in comments of Justice Morris. With regard to the interpretation of provisions of the Medical Treatment Act, Morris remarked “a construction that would promote the purpose or object underlying the Act should be preferred”. He went on to state that the whole act should be considered in order to interpret provisions within the suitable context. This point was reinforced by the listing of substantial extracts from the Medical Treatment Act, in the hope of providing a holistic understanding of the act’s purpose.
Extrinsic Sources
Dr Ashby’s report to the public advocate proved to be an essential extrinsic source. It provided a medical understanding of BVW’s situation and provided a view of whether or not the use of the PEG could be seen as palliative care. The report outlined the view that BWV was slowly dying of advanced dementia. In accordance with good medical practice and palliative care, Dr Ashby advised the cessation of the provision of nutrition and hydration via the PEG. He believed that the use of the PEG wasn’t good palliative care as it only prolonged BVW’s natural dying process.
3. second reading speech debates: Hansard
In his judgement, Morris J refers to Dr Margaret Somerville’s book The Ethical Canary, Science, Society And The Human Spirit, which distinguishes the provision of artificial hydration and nutrition from the provision of natural food and water. In doing so he justifies the parliaments exclusion of the provision of food and water from the definition of Medical treatment within the Medical act, so that patients receiving palliative would have access to food and water during the dying process. Establishing a point of difference between artificial and natural nutrition and hydration allowed the court to constitute the use of PEG as medical treatment under the definition of the medical treatment act, whilst the provision of natural food and water is deemed palliative care.
Prima Facie
Justice Stewart Morris utilised the Latin maxim ‘Prima Facie’ (translates to ‘at first glance’) in his interpretation of the term Medical Treatment as defined by the Medical Treatment act 1988. He referred to the use of PEG as ‘Prima Facie Medical Treatment’ as there was enough evidence to prove that the use of a PEG was in fact Medical Treatment because it was either the administration of a substance like a drug or some other medical procedure. The courts use of the Latin maxim assisted in the cases progression by confirming that the use of PEG was medical treatment. Based off the assumption of Prima Facie Medical Treatment, the court only had to distinguish whether or not the definitions of medical treatment and palliative care overlapped in order to prove or disprove the use of PEG constituting as palliative care.
Amicus Curiae
Justice Morris granted the Right to life Australia and The Most Reverend D J Hart, Catholic Archbishop of Melbourne, and Catholic Health Australia Incorporated leave to appear before the court as ‘Amicus Curiae’.
The parties were limited to making written submissions and oral submissions of less than one hour regarding the interpretation of the Medical Treatment Act 1988, ensuring they were in specific reference to the application’s context.
On behalf of Right to life Australia, Mrs Morrish argued that it is possible for a guardian or agent to abuse the medical treatment act. Morris J rebutted, stating that the cases listed by Morrish belonged to contexts unrelated to the Medical Treatment act, such as criminal law.
Justice Morris remarked that the submissions of the parties who appeared before the court as amicus curiae, were “comprehensive and thought provoking”. By providing opposing views and understandings to that of the Public Advocate, the Amicus Curiae parties assisted in providing contradictors
Ratio:
The Provision of artificial hydration and nutrition, through the PEG, was deemed ‘medical treatment’, rather than palliative care, under the Medical Treatment Act 1988(Vic).
Dicta
‘Some procedures, such as blood letting, might once have been regarded as medical procedures but may no longer be regarded as such. Other procedures, such as applying dressings to wounds, might be medical procedures in some contexts, but no in other contexts’
‘imagine a lucid patient suffering from throat cancer who had lost the ability to swallow. The prognosis might be that the patient had one week to live; but, if a PEG was installed to provide artificial nutrition and hydration, the prognosis might be three months.’
Order
The declarations sought by the Public Advocate of Victoria were granted by the Supreme Court of Victoria. It was decided that the provision of hydration and nutrition through a PEG to BWV constituted as medical treatment. As a result, the public Advocate of Victoria (as the limited guardian of BWV) was within its rights to refuse the use of PEG which would lead to BWV’s inevitable death.
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