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Citation Re BWV, Ex Parte Gardner (2003) 7 VR 487 Jurisdiction The Supreme Court of Victoria Judge: Morris J Procedural History Before first instance – The Victorian Civil and Administrative Tribunal appointed BWV’s legal guardian, the Public Advocate. First Instance – An application was made through an originating motion. The case was heard at the Supreme Court of Victoria Facts 68-year-old woman otherwise known as BWV suffers from a severe dementia, having no cortical nor cognitive activity, has remained unconscious and shows no sign of recovery. Therefore, with respect to this, she only gets her nutrition via PEG but gives her little, if not, chance of recovery. 1 These insights were given with the advice of three medical practitioners that came to examine BWV. 2 The Victorian Civil and Administrative Tribunal has appointed the Public Advocate, which is the plaintiff, as the guardian of BWV, given with the authority and obligation to make all the decisions on behalf of her treatment.3 The Public Advocate settled with the claim that in lieu with BWV’s family and the medical professionals that she has acquired counsel from, the continuous application of the would be against what BWV wants.4 The Public Advocate has provided an application to the Court constituting that PEG is regarded as ‘medical treatment’ and not so much as ‘palliative care’ under the Medical Treatment Act 1988 (Vic). If this is accepted and granted by the court, the Public Advocate, with the intention to do refuse medical support, can then decline any more continued medical treatment. With this in mind, BWV can no longer survive for more than a month and was given one to four weeks to live. 5 Issues There were no parties in this case however the legal issue being deliberated upon was the definition of the words used under the Medical Treatment Act 1988 (Vic);6 to be more specific, the definition of the words ‘medical treatment’ and ‘palliative care’. 7

1 Re BWV; Ex parte Gardner (2003) 7 VR 487, 489, [4]-[8]. 2 Ibid 491 [8]. 3 Ibid 490 [3]. 4 Ibid 491 [19]. 5 Ibid 491 [9]-[11]. 6 Ibid 494 [32]. 7 Medical Treatment Act 1988 (Vic) s 3.

An issue on the case resides on the question of whether or not ‘percutaneous endoscopic gastronomy’ or PEG is defined as ‘medical treatment’ or ‘palliative care’ under the Medical Treatment Act 1988 (Vic). 8 Another factual issue on question is if it follows that BWV’s best interest for the Public Advocate to no longer receive the PEG should the situation be considered as ‘medical treatment’. 9 Reasoning a) What legislation (and which sections in particular) required interpretation by the Court? According to Morris J, it was necessary to examine the whole Act especially the purpose and object of the Medical Treatment Act 1988 (Vic) in order to reach a sound conclusion. The provisions that required attention by the Supreme Court of Victoria were ss 3, 4, 5B of the Medical Treatment Act 1988 (Vic). Section 3 of the Act needed interpretation by the Court regarding the definitions and the distinctions between ‘medical treatment’ and ‘palliative care’. Interpretation was also required to determine if artificial nutrition and hydration falls under ‘medical treatment’ or ‘palliative care’, which, according to section 4 of the Act, it does not apply to ‘palliative care’. Section 5B dictates that the guardian of the patient has the authority to refuse medical treatment if they have satisfied s 5B(2)(b) of the Act. b) Which approach to statutory interpretation was applied by the Court? You must provide evidence to support your answer. The Court applied a modern approach to statutory interpretation in this case. The modern approach aims for courts to interpret legislation which follows the rules made by parliament. Morris J came to a conclusion which aided the purpose of the Act which intended to clarify the statute related to the rights of patients to refuse medical treatment and to enable guardians in making decisions regarding the medical treatment on behalf of the incompetent patient. 10 Morris J used the modern statutory approach by commenting that it will require the consideration of the whole Act in order for particular provisions to be interpreted. 11 His judgement provided that PEG constitutes as medical treatment because it is reliant on medical skills that fall far beyond those of the general public. Therefore, the conclusion of Justice Morris that PEG is considered as medical treatment under the Act supports that a modern statutory approach was applied by the court. c) Provide at least three examples of extrinsic sources referred by the court and explain how each of these assisted the Court’s reasoning. Extrinsic sources used by the Court were a parliamentary committee report, second reading speeches and cases. The Social Development Committee of the Parliament made a report, in April 1987, that discussed what ‘palliative care’ meant in its natural sense. 12 The development committee stated that ‘the primary mechanism for clarification of the common law right to refuse medical treatment is by means of legislation. Such legislation should verify the right of a competent adult to refuse medical treatment or life support systems.’13 ‘it is morally acceptable to forego medical treatment which is disproportionate or extraordinary; morally acceptable to administer pain-killing medication with the 8 Re BWV; Ex parte Gardner (2003) 7 VR 487, 494 [32]. 9 Ibid. 10 Medical Treatment Act 1988 (Vic) s 1. 11 Re BWV; Ex parte Gardner (2003) 7 VR, 487, 495 [37]. 12 Ibid 506 [80].

intention of relieving pain and suffering even though medication may shorten life.’ 14 The Social Development Committee’s statement was considered in the creation of the Medical Treatment Act 1988 (Vic) and as the Act was drafted using with what the committee had said, it allowed the Court to assume what Parliament’s intentions was when they drafted the meaning of palliative care. This allowed the Court to conclude that PEG is not included in palliative care. Attorney-General Mr McCutcheon presented a second reading speech in the Legislative Assembly which was similar with the second reading speech of Hon E H Walker. Hon E H Walker said that palliative care’s definition only covers for the relief of pain, suffering, or discomfort. This includes the provision of food and water or any other medical care that did not burden the patient. 15 Furthermore, Mr McCutcheon stated that the definition of ‘palliative care’ is included in the bill and it covers ‘treatment for the relief of pain, suffering or discomfort and specifically the reasonable provision of food or water.16 With these second reading speeches, the Parliament’s definition of palliative care were affirmed and the analysation of these speeches as extrinsic sources helped the Court in effectively interpreting that artificial nutrition and hydration does not constitute palliative care. Cases have also been used as extrinsic sources in helping the Court to interpret the legislation. Referenced cases were Re a Ward of Court,17 an Irish case, National Health Service Trust; A v M,18 and Re Conroy.19

d) Provide at least one example where the Court applied a principle of interpretation (Latin maxim, presumption or rule of semantic construction) and explain how these assisted the Court’s reasoning. The judge differentiated ‘food and water’ and ‘nutrition and hydration’ by using presumption. The Court presumed that the common law meaning of the words, ‘food’ and ‘water’, can be applied for interpretation because this was what Parliament intended.20 With Parliament excluding the provision of food and water from the context of medical treatment, they wanted to ensure that any person who is dying will have access to food and water orally if the person wishes to consume them. I find it hard to believe that Parliament would want food and water forced upon dying patients. 21 With this presumption, medical treatment and palliative care were differentiated in relation to PEG. e) Identify the parties granted leave by the Court to submit amicus briefs? Explain how these assisted the Court’s reasoning.

13 Social Development Committee, Parliament of Victoria, Inquiry into Options for Dying with Dignity (1987) 140. 14 Ibid 89. 15 Victoria, Parliamentary Debates, Legislative Council, 23 March 1988, 335 (Hon E H Walker, Minister for Agriculture and Rural Affairs). 16 Victoria, Parliamentary Debates, Legislative Council, 5 May 1988, 2167 (Andrew McCutcheon, AttorneyGeneral). 17 Re a Ward of Court [1995] 2 ILRM 401. 18 National Health Service Trust; A v M [2001] Fam 348. 19 Re Conroy 486 A 2d 1209 (NJ 1985). 20 Michelle Sanson, Statutory Interpretation (Oxford University Press, 2nd ed, 2016), 239. 21 Re BWV; Ex parte Gardner (2003) 7 VR, 487 [80].

Right to Life Australia Incorporated, Catholic Archbishop of Melbourne, and Catholic Health Australia Incorporated were granted leave by the court to submit amicus briefs. 22 The court was given briefs providing written and oral statements that aided them in interpreting the Medical Treatment Act 1988 (Vic) in “the context of application as a matter of discretion.” They provided information to assist the court because “these submissions were comprehensive and thought provoking and have assisted the court in its task.”23 Ratio Administration of nutrition and hydration via PEG constitutes as medical treatment under the Medical Treatment Act 1988 (Vic). Dicta Morris J comments that the current circumstances were not ‘reasonable’ under the definition ‘reasonable’ provision of food and water. He used the evidences provided by the medical professionals who examined BWV that PEG is used only to prolong BWV’s life instead of providing relief. 24 However, he notes that these findings have minimal impact on his determination and were discussed as the opinion of the Court.25 Order The Court ruled that nutrition and hydration being given to BWV via PEG is a medical treatment under the Medical Treatment Act 1988 (Vic) and that the refusing the nutrition and hydration via PEG means refusing medical treatment rather than palliative care.26 Analysis a) Do you believe that the Court’s conclusion was correct? Provide reasons. Yes, I do believe that the court made the right decision. The terms ‘medical treatment’, ‘palliative care’, ‘medical procedure’, ‘food and water’ was all interpreted to the best ability of the court. It can be argued that the judgement of Morris J was medically and legally proper. This can be further justified through the approach of Morris J on the case. Morris J was consistent with the approach of other courts towards artificial nutrition and hydration where they have been considered within the context of the natural meaning of ‘medical treatment’. 27 References to similar cases by Morris J in international jurisdictions like the Irish case of Re a Ward of Court, the UK case of National Health Service Trust; A v M and the USA’s case of Re Conroy helped the Court in reaching a sound conclusion that was fundamentally correct. I agree with the Court’s conclusion that the administration of artificial nutrition and hydration via PEG is a surgical procedure, where a tube is placed inside the stomach, 28 that involves skills which depend upon medical knowledge. 29 The conclusion made by the Court was logically achieved through 22 Ibid [14]-[16]. 23 Ibid [31]. 24 Ibid 492-3 [21]-[23]. 25 Ibid 510 [92]. 26 Ibid [104]. 27 Ibid 509 [90]. 28 Muscular Dystrophy Australia, Percutaneous Endoscopic Gastronomy < https://www.mda.org.au/information/peg/ >. 29 Re BWV; Ex parte Gardner (2003) 7 VR 487, 505 [76].

the use of the literal approach when the Court was interpreting whether artificial nutrition and hydration constituted ‘palliative care’. Morris J considered the intention of Parliament for the Act when he stated ‘the court would be failing to give effect to the will of Parliament if it refused to take some discretionary consideration.’ 30

b) The relevant Victorian legislation has since been amended. Do you believe that these amendments have resolve the central issue(s) in the Gardner case? Provide reasons. The Act has been repealed by the Medical Treatment Planning and Decisions Act 2016 (Vic) and has addressed the issues within the case.31 Section 3 of the Medical Treatment Act 1988 (Vic) has classified ‘palliative care’ as ‘medical treatment’, 32 this gives permission to patients or the ‘medical treatment decision maker’ to refuse a medical treatment under a ‘refusal of treatment certificate’. 33 With this change, it is no longer necessary to differentiate palliative care and medical treatment with regards to the case because both can now be refused by the patient. Unless the Public Advocate was refused by a medical practitioner, they would have not needed to approach the Court. Furthermore, the addition of ‘advance care directives’ allows patients to legally express their wishes on future treatments if they become unresponsive.34 This also minimizes the instances of guardians abusing their power of attorney because the ‘advance care directives’ can be taken into consideration.

c) What was the significance of the case? A precedent has been established in establishing the difference between ‘medical treatment’ and ‘palliative care’ in regards to artificial nutrition.35 Other states and territories have the similar definition which makes this case relevant in finding out the distinction of the relevant terms. The Queensland Law Reform Commission used this case as a reference in their examination pertaining to the withdrawal of PEG, demonstrating that the definitions of this case are importantly outlined.36 Morris J also comments on lieu of artificial feeding, that it corresponds to the oral intake of food.37 He further discusses that PEG is more closely related to artificial nutrition rather than the traditional and simple definition of food intake, which makes it not to be considered as palliative care. This may potentially be helpful in future legislation which outlines artificial nutrition as a reasonable provision of food and water or if it should be considered as a type of treatment.

30 Ibid 511 [100]. 31 Medical Treatment and Planning Decisions Act 2016 (Vic) s 101. 32 Ibid s 3. 33 Ibid pt 2. 34 Ibid s 6. 35 Michael A Ashby and Danute Mendelson, ‘Gardner; re BWV: Victorian Supreme Court makes landmark Australia ruling on tube feeding’ (2004) 181 (8) Medical Journal of Australia. 36 Queensland Law Reform Commission, A Review of Queensland’s Guardianship Laws (Report No 67, September 2010) 238-9. 37 Re BWV; Ex parte Gardner (2003) 7 VR 487, 507 [85]....