SUPREME COURT DECISION in GARDNER re BWV

This 37 page document by Justice Stuart Morris is on one level a legal decision as to whether artificial tube feeding is medical treatment. However there are many other points made in the analysis that are important.

Para 8: The judge writes that the evidence of three medical witnesses was that provision of nutrition and hydration via the tube was futile, in the sense that it had no prospect whatever of improving her condition.

Para 11: The judge accepted that BWV would die within one to four weeks of the withdrawal of tube feeding.

Para 19: The judge accepts the views of the husband and family of BWV as to the prior expressed wishes of BWV.

These views were fully expressed in the VCAT hearing, and transmitted to the Supreme Court by the Public Advocate as guardian. These family views and wishes are surrogate expressions re best interests, and have no formal legal power, until they are expressed through a legally appointed guardian. However acceptance of such surrogate views is common medical practice in other decisions re withdrawal of treatment. The approach to VCAT, for the appointment of a guardian, and to the Supreme Court were specifically on the basis of allowing the withdrawal of a tube feeding, the continuation of such feeding being unreasonable. The acceptance of family as surrogates in expressing the views of an incompetent person is important.

Para 20: The judge stated that his decision did not depend on this evidence as his ruling was made on other criteria.

Para 24: The judge stated that medical opinion re tube feeding is not "directly relevant" in the context of the Medical Treatment Act (the Act), because the expression "medical treatment", when used in the Act, carries a special statutory meaning.

Para 32: The judge describes the key issues as

Para 36: The judge indicated that in giving its judgment the Court should be taken as giving effect to the will of parliament, not making new law.

Para 41: The judge drew attention to the preamble to the Act which made it relatively easy to discern the purposes of the Act.

It should be noted that the preamble states that it is desirable "(f) to ensure that dying patients receive maximum relief from pain and suffering".

Para 42, 43: The judge discussed sanctity of life, though preferring the term "inviolability of life". He referred to Hoffman LJ in Bland, who referred to the balance between this principle and the principle of individual autonomy or the right to self determination. In determining this balance, when there is conflict between two rational and good principles, the decision revolves around the "best interests" of the patient.

Para 50, 51: The judge noted that the parliamentary committee report on the Inquiry into Options for Dying with Dignity had concluded that a competent adult had a right to refuse medical treatment or "life support systems".

The report also noted a basic right to die with dignity, accepting that

Para 80: The judge notes that palliative care extends to care of the relatives of the dying patient.

Para 81: Justice Morris found that "the administration of artificial nutrition and hydration, via a PEG, cannot be regarded as palliative care, where that expression is used in its natural sense. Such a procedure, is in essence, a procedure to sustain life; it is not a procedure to manage the dying process, so that it results in as little pain and suffering as possible."

Para 85: The judge notes that it can hardly have been the parliament's intention that dying patients would be forced to consume food and water. He agrees with the Canadian ethicist Dr Margaret Somerville - "In short, respecting a refusal of this type of treatment is no different from accepting a person's refusal of respiratory support for a failed respiratory system. We have tended to see these situations differently because of the values and symbolism attached to the provision of food and drink for those in our care. We have wrongly equated artificial hydration and nutrition (a medical life-support system) with natural food and drink and, thereby, have mistakenly equated the withholding of them. Rather, the basis on which this decision should be made is the ethics of the withholding or withdrawal of life support treatment, not that of food and water."

Para 88: The judge finds that "there is every indication that the parliament intended to put the patient's agent or guardian in exactly the same position as the patient, when it came to refusing medical treatment, provided that the safeguards added into the Act by the Medical Treatment (Enduring Power of Attorney) Act were complied with".
These seven safeguards are then listed.

Para 90: The judge concludes that artificial nutrition and hydration is medical treatment. He cites Lord Goff in Bland, where he equates tube feeding with artificial ventilation.

Para 91: He refers to "the emotional symbolism of food".

Para 92-95: He discusses the meaning of "reasonable" in relation to this decision. He indicated that the decision does not depend on this matter, but that it would have been significant if he had found that tube feeding was palliative care. He observed that the Court would have found that in the case of BWV that tube feeding was "not reasonable in all the circumstances. In forming this view I would rely upon evidence of the medical witnesses who observed BWV, the view of her guardian that it would be contrary to her wishes to continue to receive nutrition and hydration through the PEG, her existing condition, the period for which she had been in her existing condition, her prognosis and the fact that continued feeding is doing no more than merely postponing the natural dying process."

Unfortunately, this does not fully resolve the question 'In whose opinion is it reasonable?', since it implies that it relies on a number of opinions. Yet by allowing an agent or guardian to make the decision based on the patient's and/or family's expressed views and other contextual factors, the implication is that it is the view of the patient or the patient's representative regarding reasonable that is important

Para 102: The judge indicated that there was no uncertainty as to whether the administration of artificial nutrition and hydration via a PEG is medical treatment. Further, he clearly indicated that there was no necessity to consider the question of parens patriae. The Act was clear and should continue to function without further recourse to the Supreme Court.

Para 103: The judge's Declaration read - "This is an appropriate case for the making of the declarations sought by the Public Advocate. The circumstances of BWV are real, not hypothetical. The issues have been fully and competently argued. The court has formed the firm conclusion that artificial nutrition and hydration is medical treatment within the meaning of the Medical Treatment Act. The making of the declarations will remove any doubts that the Public Advocate may have had in relation to the decisions open to him, in relation to BWV, under the Act; and will enable the Public Advocate to decide, on behalf of BWV, whether it is now time to allow her to die with dignity."