Core Skills.docx

Core Skills.docx - Re BWV Ex parte Gardner(2003 7 VR 487...

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Re BWV; Ex parte Gardner (2003) 7 VR 487 Supreme Court of Victoria Single Judge: Morris J First instance: Victorian Civil and Administrative Tribunal (hereon referred to as ‘the Tribunal’) Present matter: Supreme Court of Victoria- Common Law Division BWV is a 68-year-old full care patient in a vegetative state of dementia who receives artificial hydration and nutrition through a percutaneous endoscopic gastronomy (‘PEG’); a process that keeps her alive, but is futile in terms of improving her condition. 1 The Public Advocate of Victoria (plaintiff- Julian Gardner) was assigned by the Tribunal to act as the limited guardian of BWV, allowing him to make choices regarding her medical treatment. After serious consideration of BWV’s health, family and medical consultation, the Public Advocate concluded that the sustenance delivered to BWV, via a PEG was ineffectual and unwarranted, making the following declarations: The provision of artificial hydration and nutrition via a PEG constitutes as medical treatment within definition of the Medical Treatment Act 1988 (Vic) 2 (hereon referred to as ‘the Act’) and; The refusal of this nourishment via a PEG equates to the refusal of ‘medical treatment’ as opposed to ‘palliative care’ 3 Yet, if the requested declarations are made, BWV will die within a month of withdrawing such sustenance. 4 While there are no factual issues in contention, the ambiguity regarding the definitions of ‘palliative care’ and ‘medical treatment’ prompt the following legal issues: 1. Does the administration of artificial nutrition and hydration through PEG constitute as ‘medical treatment’ or ‘palliative care’ in terms of their use under the Act? 2. If the procedures of PEG satisfy the criteria of ‘medical treatment’, does the plaintiff have the legal right to refuse it on behalf of BWV? 1 Re BWV; Ex parte Gardner (2003) 7 VR 487, 488. 2 Medical Treatment Act 1988 (Vic). 3 Ibid 491 [9]. 4 Ibid 490 [3]. P a g e 1 | 9
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3. Is it lawful for the Court to make the declaration pursued by the Public Advocate, as opposed to declining them and exercising its powers within the inherent parens patriae jurisdiction? The claim raised by the Public Advocate, regarding the conflicting distinction between ‘medical treatment’ and ‘palliative care’ was elucidated through interpretation of the relevant provisions of the Medical Treatment Act (No 41) 1988 (Vic) (hereon referred to as ‘the Act’) ss 3, 4(2), 5B. Medical Treatment Act 1988 (Vic) s 3: Of all the provisions included in the Act, s 3 remained of utmost importance, as the crux of the legal proceedings oscillated around whether PEG should be categorised under ‘palliative care’ or ‘medical treatment’. In light of this, the Court followed a syllogistic application of rules from which the term ‘medical treatment’ was identified as an ‘operation’ or ‘medical procedure’ possibly involving the administration of a ‘drug or other like substance’. 5 Further,
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