Re BWV, ex parte Gardner

This case was brought by the Public Advocate of Victoria as limited guardian of BWV, a woman aged 68 years, suffering from a fatal form of dementia (most likely Pick’s disease). At the time of bringing the case, BWV had not appeared conscious, nor had she had any cortical activity for approximately three years. Evidence was presented to the court to the effect that the damage to BWV’s cortex was irreparable and that there was no prospect of any recovery or improvement to BWV’s condition. BWV received fluid and nutrition via a percutaneous endoscopic gastronomy (PEG) tube, which kept her alive.

The public advocate sought judicial clarification as to the distinction between “medical treatment” and “palliative care” with reference to their uses in the Medical Treatment Act 1988 (“the Act”). The Act defines medical treatment as, inter alia, “(b) the administration of a drug or other like substance; or (c) any other medical procedure” and palliative care as “(a) the provision of reasonable medical procedures for the relief of pain, suffering and discomfort; or (b) the reasonable provision of food and water.” Under the Act, it fell within the powers of the guardian to refuse medical treatment but not to refuse palliative care. The question for the court was thus whether the provision of nutrition and hydration via the PEG tube was a “Medical Treatment,” with the result that it could be lawfully removed at the direction of the public advocate and induce the death of BWV, in line with what the public advocate and BWV’s family believed to be her wishes.

The application was made by way of originating motion and did not name any defendant. However, the Attorney General for the State of Victoria was given leave to intervene, whilst Right to Life Australia and Reverend D J Hart, the Catholic Archbishop of Melbourne, were given leave to appear as amicus curiae.

Justice Morris of the Supreme Court of Victoria found that the artificial provision of nutrition and hydration constituted “medical treatment” under the Act and not palliative care, allowing the refusal of nutrition and hydration like any other medical treatment.

The Court decided that “medical treatment” was a legal term defined by the Act. Thus, while the court listened to medical professionals that viewed the administration of nutrition and fluid via a PEG as a medical treatment, their opinions were not binding. The Court noted that the terms medical treatment and palliative care overlap and that the Act has a purpose to promote the right of a patient to refuse treatment and a parliamentary intention that food and water be readily available for oral consumption by a dying person, if they so chose.

The Court evaluated whether the specific act of artificial nutrition via a PEG and found it was a medical treatment and not palliative care. The use of the PEG for artificial feeding and hydration was found to be “unquestionably” a “medical procedure” as it necessitates “protocols, skills and care which draw from…medical knowledge.” Likewise, the administered nutrition, Osmolite, was more similar to a drug than food, and thus, the specific act was also a medical treatment under the administration of a drug or other like substance definition. The Court did not consider artificial nutrition via a PEG palliative care as the treatment was meant to sustain life and not to manage the dying process and because “the reasonable provision of food and water” was not meant to overlap with medical treatments but meant to ensure the availability of food and water for oral consumption.

"[76] It is not necessary to explore all the circumstances which might be said to constitute a medical procedure: because, unquestionably in my judgment, the use of a PEG for artificial nutrition and hydration, or for that matter any form of artificial feeding, is a “medical” procedure. Artificial nutrition and hydration involves protocols, skills and care which draw from, and depend upon, medical knowledge. Artificial nutrition and hydration will inevitably require careful choice of and preparation of materials to be introduced into the body, close consideration to dosage rates, measures to prevent infection and regular cleaning of conduits. These are not matters of common knowledge."

"[81] I find 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."

"[85] 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. Further, in my opinion, the extension of the concept to artificial nutrition and hydration would produce odd results, contrary to the purpose of the legislation to allow patients, or agents or guardians on their behalf, to choose to refuse medical treatment and to die with dignity…"