• Specific Year
    Any

Gardner, Julian --- "Withdrawing Medical Treatment in Victoria" [2004] ElderLawRw 2; (2004) 3 Elder Law Review 2


WITHDRAWING MEDICAL TREATMENT IN VICTORIA

JULIAN GARDNER[1]

In Victoria the common law right of all competent adults to refuse medical treatment is enshrined in the Medical Treatment Act 1988 (the Act). Since its passing, however, there has been substantial uncertainty about whether or not it was lawful to refuse artificial nutrition and hydration.

Under the Act while medical treatment may be refused, palliative care may not. The latter is defined as including both the provision of pain relief and "the reasonable provision of food and water". Did this mean food and water administered either by a nasogastric tube or by a percutaneous endoscopic gastrostomy - a PEG tube?

In May 2003 the Supreme Court of Victoria in Gardner: re BWV clarified this issue. In doing so it protected and promoted the rights of people with a disability who had, while competent, made their wishes on medical treatment known.

The case concerned a 68 year old woman (Mrs BWV) suffering from Pick's disease, a form of dementia. Eight years ago when she was already unable to communicate or make decisions for herself a PEG tube was inserted. For the last three years Mrs BWV lay in a contracted foetal position moving nothing but her eyes. She did not appear conscious nor have any cortical activity, cognitive capacity nor bodily functions, other than those that are reflexive. There was no prospect of any recovery or improvement and the medical witnesses considered that the provision of nutrition and hydration was futile in the sense that it had no prospect whatsoever of improving her condition. Evidence was accepted from her husband and six children that, while competent, she had made it clear that should she ever suffer such disability she would not wish to receive medical treatment to keep her alive.

She had not appointed an Enduring Power of Attorney for medical treatment who, like a guardian may, subject to several safeguards, refuse treatment on behalf of an incompetent patient. Consequently an order appointing a guardian was sought from the Victorian Civil and Administrative Tribunal.

The Office of the Public Advocate conducted an investigation for the Tribunal, presenting further medical evidence and evidence of her wishes about treatment. These views were vital as a guardian (or an agent appointed under an Enduring Power of Attorney for medical treatment) cannot refuse medical treatment unless it causes unreasonable distress or, importantly, if they are satisfied that the person, if fully informed about the treatment, would themselves consider it unwarranted. In addition, the agent or guardian must be satisfied that any decision is in the person's best interests.

In a submission to the Tribunal, Right to Life Australia Inc argued that to refuse further use of the PEG tube for administering nutrition and hydration would be an act of homicide. The Tribunal found, however, that the PEG feeding could be refused and appointed the Public Advocate the guardian of Mrs BWV.

A declaration was then sought in the Supreme Court. Submissions were made by the Attorney-General as contradictor and Right to Life Australia Inc, and the Catholic Archbishop of Melbourne and Catholic Health Australia as amicus curiae.

The Court declared that the provision to Mrs BWV of nutrition and hydration by means of a PEG tube was medical treatment and that it could be lawfully refused as it was not palliative care.

Similar decisions have been made in the UK, USA, New Zealand and Canada. Although dealing specifically with a Victorian law, the decision will, as the first by an Australian Court, be important in other jurisdictions. 'Medical treatment' in the Act includes a 'medical procedure'. It was held that this "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 or discomfort". In addition the provision of artificial nutrition and hydration "involves protocols, skills and care which draw from and depend upon medical knowledge" and so its provision is a medical procedure. It held that the reference to food and water in the definition of 'palliative care' is a reference to food and water available for oral consumption.

The decision is important for people who, while competent, make known their views and wishes about medical treatment including treatment that may be proposed after they have become disabled. It does not affect those who have never been able to express their wishes or who, although once able, did not do so. It should also give greater certainty to medical practitioners and eliminate inconsistencies in practice.


[1] BA, LLB, Barrister and Solicitor, Public Advocate for Victoria (Australia)

Download

No downloadable files available