LAW115 Briefing Case PDF

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Citation: Re BWV; Ex parte Gardner (2003) 7 VR 487 Jurisdiction: The Supreme Court of Victoria, Common Law Division. Judge: J Morris Procedural History: 28 February 2003: Victorian Civil and Administrative Tribunal (“the tribunal”) 29 May 2003: Supreme Court of Victoria Facts: BMV is a 68-year-old woman who suffers from a fatal form dementia, having no cortical activity, cognitive capacity and shows no signs of consciousness in approximately 3 years and shows no sights of recovery. In response to this, she receives fluid and nutrients through a percutaneous endoscopic gastrostomy (“PEG”), providing the necessities to live.1 The Public Advocate of Victoria (the plaintiff) appointed as a guardian on behalf of BWV. This provided them with the responsibility to make all decisions on behalf of BWV regarding her medical treatment.2 The plaintiff put forward an application to the Courts, seeking declarations. This was in respect to the PEG that provided artificial fluids and nutrients to BWV, and therefore the device constituted ‘medical treatment’, rather than ‘palliative care’ under the Medical Treatments Act (1988), which would allow the refused of the PEG by a representative guardian or agent under ‘medical treatment’.3 Issues: There were no factual issues in contention between the parties. A legal issue that was in dispute was the definitions of the words within the Medical Treatment Act 1988; more specifically the terms ‘medical treatment’ and ‘palliative care’ in the Act. Another legal issue is regarding the Guardianship and Administration Act 1986, and if the Court should decline the Public Advocate’s declarations, either completely or to allow the Court to exercise its power on behalf of parens patriae jurisdiction.4

1 Re BWV; Ex parte Gardner (2003) 7 VR 487, 489, [4]-[8]. 2 Ibid, 489-90, 1-2. 3 Medical Treatments Act 1988 (VIC) s 3; Re BWV; ex parte Gardner (2003) 7 VR 487, 490, [9]-[10]. 4 Re BWV; Ex parte Gardner (2003) 7 VR 487, 493, [32].

Reasoning: a)

What legislation (and which sections in particular) required interpretation by the Court?

Medical Treatment Act 1988 (VIC) - Section 3:

b)



‘medical treatment’ (a), (b), (c), and;



‘palliative care’ (a), (b)

Which approach to statutory interpretation was applied by the court? You must provide evidence to support your answer.

The Court used the Modern Rule to interpret the Medical Treatment Act 1988 (VIC). The Modern Rule incorporates the Literal Rule, the Golden Rule and the Mischief in interpreting the Act. The Literal Rule and Golden Rule focuses on the phrasing of the Act and looking past the ordinary meaning of the words.5 This is used through the judge’s statement under the ‘Medical Treatment Act method of approach’ title demonstrates evidently the literal statutory interpretation of the case. “Having regard to the framework of the Medical Treatment Act 1988 (VIC), it is convenient to first consider whether the provision of nutrition and hydration to BWV, via a PEG, falls within paras (a), (b) or (c) of the definition of medical treatment; and, secondly, if it does fall within any of these paragraphs, to then consider whether it falls within the definition of palliative care. It is convenient to describe an action which falls within paras (a), (b) or (c) of the definition of “medical treatment” as being “prima facie medical treatment”.6 The judge, after reviewing the definitions and modifying the ordinary meaning of ‘hydration and nutrition’ that the phrase ‘food and water’, proceeding to exhibit the Literal and Golden Rule - “it is now necessary to consider whether the artificial nutrition and hydration in this case would also fall within the definition of “palliative care”. 7 This not only highlights the judge’s reliance on considering the phrases within the definition, but also the consideration of the extent of commonality or ‘overlap’ between prima facie medical treatment and palliative care.” The Mischief Rule focuses on the purpose of the Parliament passing the Act 8. The rule is implemented through the judge’s comment “It can hardly have been the Parliament’s intention that dying patients would be forced to consume food and water.” 9, therefore interpreting the purpose of the legislation passed by the Parliament. Also by looking at the purpose of the Act’s purpose “to both clarify and give legal effect to the right of a patient to refuse unwanted medical treatment; and to enable an agent (including a guardian) to make a decision about medical treatment on behalf of an incompetent patient.”10 Therefore, the judge interprets the Act through the Mischief Rule. Overall, the judge approached the statutory interpretation through the Modern Rule.

5 Sanson, Statutory Interpretation (Oxford University Press, 2nd ed, 2016), 208-210. 6 Re BWV; Ex parte Gardner (2003) 7 VR, 503, [72]. 7 Ibid, 503, [79]. 8 Sanson, Statutory Interpretation (Oxford University Press, 2nd ed, 2016), 211. 9 Re BWV; Ex parte Gardner (2003) 7 VR 487, [85]. 10 Ibid, 503, [73]

c)

Provide at least three examples of extrinsic sources referred to by the court and explain how each of these assisted the Court’s reasoning.

The Canadian author Dr. Margaret Somerville, the founding director of the McGill Centre for medicine, Ethics and Law wrote the book ‘The Ethical Canary, Science, Society and the Human Spirit’11, which aided the Court in its reasoning. It accomplished this through the extract included by the judge in the report, endorsing that “We have wrongly equated artificial hydration and nutrition (a medical life-support treatment) with natural food and drink and, thereby, have mistakenly equated the withholding of them.”12 Through the clear separation of food and water, and hydration and nutrition, the Court could additionally define the ‘PEG’ as a medical treatment decelerating the rate of inevitable death of BWV in her state of fatal dementia, and not a palliative care of ‘reasonable provision of food and water’ under the Medical Treatment Act 1988 (VIC).13 Within the second and final report of the “Inquiry into Options for Dying with Dignity” 14, the Social Development Committee of the Parliament emphasises the meaning of ‘palliative care’ in its natural sense. The reported quoted a variety of sources, including the Right to Life Victoria, which highlights that “when death has become inevitable, treatment should be adjusted, since the patient’s best interest would then be served by treatment that emphasised relief, rather than futile attempts to cure.” 15 This assisted the Court in its reasoning as it provided a death and treatment comparison, linking to a more medical treatment characteristic, rather than palliative care. The Medical Treatment (Enduring Power of Attorney) Bill on 3 May 1989 was debated in the legislative Council16. It was designed to “ensure that satisfactory safeguards were in place to prevent the abuse, by agents or guardians, of the power to refuse medical treatment on behalf of some other person.”17 This allowed the Court to consider with less weight parens patriae alternative, and to be capable of trusting the guardian to uphold the correct decisions on behalf of the incompetent person. d)

Provide at least one example of where the Court applied a principle of interpretation (Latin maxim, presumption or rule of semantic construction) and explain how this assisted the Court’s reasoning.

The Judge uses presumption to help differentiate ‘food and water’ and ‘nutrition and hydration’. The judge states that “In my opinion, the intent of Parliament in excluding the provision of food and water from the concept of medical treatment was to ensure that a dying person would have food and water available for oral consumption, if the person wished to consume such food or water. It can hardly have been the Parliament’s intention that dying patients would be forced to consume food and water.” 18 This presumption provided the distinction between palliative care and medical treatment under the Act, in regards to the PEG.

11 Somerville, The Ethical Canary: Science, Society, and the Human Spirit (McGill-Queen’s University Press, 2004).

12 Re BWV; Ex parte Gardner (2003) 7 VR 487, [85]. 13 Medical Treatments Act 1988 (VIC) s 3. 14 Social Development Committee, Inquiry into Options for Dying with Dignity, Report No 19, (1987).

15 Re BWV; Ex parte Gardner (2003) 7 VR 487, [80]. 16 Medical Treatment (Enduring Power of Attorney) Bill 1989 (VIC), amending Medical Treatments Act 1988 (VIC); amending Instruments Act 1958, s 6. 17 Re BWV; Ex parte Gardner (2003) 7 VR 487, [71]. 18 Re BWV; Ex parte Gardner (2003) 7 VR 487, [80].

e)

Identify the parties granted leave by the Court to submit amicus briefs? Explain how these assisted the Court’s reasoning.

Right to Life Australia Inc and Catholic Health Australia Inc were both granted leave by the Court to submit amicus briefs19. These briefs provided the court written and oral submissions that assisted in interpreting the Medical Treatment Act 1988 (VIC) in “the context of the application as a matter of discretion.” They provided a basis to aid the Court as “These submissions were comprehensive and thought provoking and have assisted the court in its task.” 20 Ratio: State the Ratio of this case. The ratio of this case is that artificial nutrition and hydration is a medical treatment within the meaning of the Medical Treatment Act21. Dicta: Provide two examples of obiter dicta from this case. Mr. Burnside’s emphasis on Osmolite, the artificial nutrition provided to BWV via the PEG, and how it consists of a number of minerals was commented on by the judge stating that “the same could be said of a banana.”22 The judge also comments on the Parliament’s intention of the exclusive provision of food and water, and that “It can hardly have been the Parliament’s intention that dying patients would be forced to consume food and water.” 23 Order: What was the Court's ruling (holding)? The Court ruled that ‘nutrition and hydration’ via the PEG to BWV is a medical treatment within the Medical Treatment Act 1988 (VIC), and that the refusal of nutrition and hydration to BWV is refusal of medical treatment, rather than refusal of palliative care 24. Analysis: a)

Do you believe that the Court’s conclusion was correct? Provide reasons.

I do believe that the Court’s conclusion was correct. The Medical Treatment Act 1988 (VIC) provides the phrases ‘medical treatment’, ‘palliative care’, ‘medical procedure’ and ‘food and water’ to all be interpreted to the Court’s best ability25. Also, up to the ratification of the Act on 1 September 1988, only the patient could refuse medical treatment, not agents or guardians on behalf of the patient26. Therefore the PEG could only be refused by the patient, however the provisions of ‘food and water’ strictly relate to ordinary, non-medical

19 Ibid, [14]-[16]. 20 Ibid, [31]. 21 Ibid [103]. 22 Ibid [78]. 23 Ibid [80]. 24 Ibid [104]. 25 Medical Treatments Act 1988 (VIC) s 3 26 Public Trustee Act 1958 (VIC) s 32, 2.

provisioned food and water, and does not include medically provided nutrition and hydration, and thus it is acknowledged as a medical treatment under the Medical Treatment Act 1988 (VIC); to which can be refused under the Guardianship and Administration Act 1986 (VIC) under Section 38, 1 (a)-(g) by an agent or guardian27. This Act provides a reasonable framework to ensure that the Public Advocate of Victoria, acting on behalf of BWV, would take actions that “would be in the best interests of the patient”. Through the literal statutory interpretation used by the Court, a conclusion was drawn to which was lawful and correct in achieving the best interest for BWV and her nearest relatives and family members. b)

Do you believe that the Victorian Act should be amended? Provide reasons.

I believe the Victorian Act should be amended to clarify a distinct difference between ‘food and water’ and ‘medical treatment’. If this is fulfilled, less confusion and interpretation would be required by the Courts, allowing the time and money of both parties to be saved. The clarity would also set out the capabilities of the agents and guardians acting on behalf of the plaintiff within the Guardianship and Administration Act 1986 (VIC), provided to them through the redefining of key terms under the Medical Treatment Act 1988 (VIC).

c)

What was the significance of the case? As a starting off point, read the following journal article: https://www.mja.com.au/journal/2004/181/8/gardner-re-bwv-victoriansupreme-court-makes-landmark-australian-ruling-tube

http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VSC/2003/173.html? stem=0&synonyms=0&query=Gardner https://www.mja.com.au/journal/2004/181/8/gardner-re-bwv-victorian-supreme-court-makeslandmark-australian-ruling-tube http://www.austlii.edu.au/au/legis/vic/consol_act/mta1988168/

27 Guardianship and Administration Act 1986 (VIC), s 38, 1....