BWV [2003] VCAT 121 (28 February 2003)

Dr. Syme's letter contained certain submissions. It did not appear that Dr. Syme had formally examined or assessed the proposed represented person although he had visited her shortly before writing his letter. He referred to the diagnosis of Pick's disease and said:

"... I have no doubt that she is being maintained in a persistent vegetative state by virtue of the PEG feeding."

For reasons which will become clear, it is relevant to note Dr. Syme's further comment:

"There is no doubt that all eminent medical authorities worldwide regard tube feeding in this circumstance to be medical treatment, the use of which can be refused by a competent patient."

Dr. Woodward assessed the proposed represented person at [her nursing home] on 14 December 2002 - the date of his report. The report is now summarised.

Dr. Woodward noted a history which was "most prominent for a diagnosis of Pick's disease (frontotemporal dementia) that was made by her neurologist 10 years ago (1992)". Dr. Woodward understood that at the time of the diagnosis there had been extensive evaluation including neuro-imaging. The proposed represented person had been in the nursing home for a little over 3 years. She had deteriorated though not noticeably more so in the last few months. A PEG tube was inserted to assist with feeding and hydration approximately 8 years ago, before admission to the nursing home. She was currently given fluid and nutrition only in that way - that is, she was not able to swallow and ingested absolutely nothing by mouth. Mouth hygiene was attended to by regular glycol washes.

Dr. Woodward stated that the proposed represented person required full nursing care. She was doubly incontinent and wore pads. She was completely unable to attend to any of the personal activities of daily living. She was moved by a hoist to the shower but spent the rest of her time in bed. She had regular pressure care. It was understood that she had significant numbers of pressure ulcers on admission to the nursing home though had none at the time of the assessment. Medication was inserted through the tube - diazepam 10 mg daily; lactulose 20 mg daily; paracetamol elixir 20 ml mane; nortriptyline 25 mg mane and a multi vitamin preparation (Penta - Vite child strength 5 ml.)

On examination she was found to be awake. She followed Dr. Woodward with her eyes as he moved from one side of her bed to the other and she alternately looked at the nurse and Dr. Woodward when they stood on opposite sides of her bed. It was impossible, however, to elicit any other response. In particular, there were no vocalisations or changes in respiration. Moderately painful stimuli elicited no response. She had regular respirations. Pulse was 80, regular. Tissue turgor was normal. All four limbs had fixed "contractors (sic)" with the limbs in a flexed state. There was no evidence of pressure ulceration although there was some erythema where her feet had been tightly pressed against each other. Her lungs were clear. Two heart sounds with no murmur were detected. Her abdomen was lax and the PEG site was well healed with no infection apparent.

Dr. Woodward stated that it was difficult to examine the patient neurologically but her eyes moved as described. Pupils were equal and reacted to light. He could not assess limb strength, sensation, reflexes or tone.

She was said to have an advanced neuro-degenerative condition. At this stage it was impossible to distinguish between a frontotemporal dementia (Pick's disease) and other dementias or many other chronic neurological degenerative diseases but the current findings were consistent with a dementia and certainly consistent with a frontotemporal dementia such as Pick's disease. She was fully dependent and appeared to be receiving very good nursing care.

The Tribunal had requested the Public Advocate to put certain questions to Dr. Woodward. His report contained responses to those questions, which included the following further information.

The proposed represented person had no cognitive capacity at all. She appeared to be insensate in that she did not respond to pain. She did, however, appear to respond to visual stimuli by following with her eyes and so Dr. Woodward did not believe that she was fully insensate. It was very difficult to assess if she had any awareness. She showed no response to stimuli apart from following with her eyes. Dr. Woodward expressed doubt that she had "any awareness in the sense that we would understand." All her bodily functions were reflex functions, including reflex emptying of her bowel and bladder.

Dr. Woodward said that the term "persistent vegetative state" was not used for severe end-stage dementia. He strongly suspected that the proposed represented person had some brain activity although he did not have EEG evidence to confirm this. She almost certainly had severe damage to most of her cortex whether the result of Alzheimer's disease or frontotemporal dementia. The damage was irreparable. Eye movements indicated brain activity but there were no neurological findings consistent with cortical activity. On the other hand, there was no evidence of brain stem damage. In particular, her cardiovascular system was stable, respirations were regular and she followed objects with her eyes.

Dr. Woodward stated that the maintenance of hydration and nutrition were not "generally regarded" as medical treatment. He expressed the belief that most of his colleagues would not regard PEG tubes as medical treatment.

In response to the question "does the artificial nutrition provide benefit to [the proposed represented person]?" Dr. Woodward said "Certainly it does - without such nutrition she would be unable to survive". He added, though, that the important point was whether this "life-sustaining intervention" was justified.

Even with PEG feeding she did not have a good prognosis and was likely to develop pneumonia or "another terminal event" in the next months to years. There was absolutely no prospect for any degree of recovery.

According to Dr. Woodward, if the PEG tube was removed the proposed represented person would die of dehydration and renal failure. It was well established in the medial literature, however, that terminal dehydration was associated with minimal if any suffering. If the PEG tube was left in and food was ceased but hydration continued, her death would be slower, probably several weeks.

Finally, Dr. Woodward expressed the view that it was inappropriate to sustain life in the presence of such severe brain damage and stated his belief that it would be good medical practice for the PEG to be removed.

It is convenient to record at this stage simply that the Public Advocate's report recited the essential history of the proposed represented person's illness and her admission to the nursing home. The report also detailed relevant conversations between her and members of her family before she became unwell and recorded the attitude of her children to the application: of 6 children all 4 daughters and 1 son supported the application; the other son was "less in agreement", but it was reported that if he thought that his mother could get better he would have a different view to his father. He tried to visit his mother occasionally and knew that "in a sense" she was "not there".

Finally, the report contained the Public Advocate's submissions on questions of law.

The Tribunal clarified factual matters and the Public Advocate's submissions at the hearing.

The applicant and his 4 daughters attended the hearing. The applicant confirmed that all his 6 children aware that the hearing was taking place.

The applicant told the Tribunal that it was Dr. Butler who finally made the diagnosis of Pick's disease. He produced the letter from Dr. Butler dated 12 April 1994. The first signs of illness were visible some time before 1994 at which time various doctors were consulted. The signs of illness had emerged about 14 years ago. At first her speech was affected. Ultimately, her case was "more or less given up as a hopeless case". There wasn't much treatment being given at that stage because there wasn't much that could be done for her. The applicant cared for her at home and after a few years it was suggested that Royal District Nurses and a case manager become involved. The applicant did not actually request that the PEG be inserted. He recalled that he was asked by one of the nurses in combination with Dr. Whitty to give permission for it to be inserted because his wife was no longer able to be fed through the mouth. That ability had reduced gradually over time. The procedure took place somewhere between 5 and 7 years ago. It was performed at a hospital. The applicant then administered the feeding at home a number of times each day. At that stage he could not by any means ascertain his wife's views about the matter.

At the time the PEG was inserted the proposed represented person was able to walk. The procedure was proposed to enable her to remain mobile, for which nourishment was required. The applicant accepted this measure in the hope that things might improve. It was never made clear for how long she would have the tube. When she went to the nursing home there was "more or less the feeling that she would not last for much longer". She was admitted in the month of September and it was thought that she would not survive until the following December. In hindsight the applicant considered that it was not the right decision to have the PEG inserted but he was guided by the advice which he was given at the time. He had seen the PEG as a temporary measure.

The applicant told the Tribunal that his wife had asked not to be kept alive in such circumstances. He said he could vividly remember a discussion he had had with her sometime between 1975 and 1985 in which it was agreed that if ever either of them reached a stage like her present one they should "do something about it" and not make the other "linger on unnecessarily when life has no more meaning and [he or she was] not aware of things any more". The family had open discussions about such issues, he said. Later in evidence the applicant said that he and his wife had promised each other to "do something" in those circumstances.

There was never any discussion between the applicant and his wife about an enduring power of attorney (medical treatment) under the Medical Treatment Act 1988. The applicant was not aware of the possibility of such an appointment until a few years ago.

There was now no way of making contact with the proposed represented person. She could not move. She could not communicate if she was in any pain. The applicant believed that occasionally his wife had seizures at which time she became red in the face and went stiff. The last such episode occurred a week or so before the hearing. It happened less now than in previous years. Prolonging her life was like "keeping an engine running" but with no "quality of life", he said. Her body was not wasting. At one stage she actually gained weight and the amount of food had to be reduced. At first, when she was at home but could no longer swallow, she lost weight.

The applicant said that he saw no therapeutic benefit in the feeding and related treatment.

The applicant spoke to Dr. Whitty at least 2 years ago, hoping that something could be done about the situation but was told that it was not permissible to discontinue artificial feeding. Since that time he had continued to try to find out what he could do. He had heard of another nursing home which consulted a family and obtained permission to remove a feeding tube yet, when he asked for it to be done for his wife, he was told that it could not be done. His family was constantly involved in discussions about this.

During this time the tube had come out once, he thought. Nursing home staff replaced it more or less automatically. He was not consulted at the time. When his wife had been at home the tube had come out from time to time and he had replaced it.

All of the proposed represented person's daughters confirmed that they supported their father in making the application.

The first of the proposed represented person's daughters to give evidence told the Tribunal that her mother's ability to communicate was the first function to be lost. (She had told the Public Advocate that although she did not recall a conversation with her mother on the subject there was an attitude pervasive in the family that life should not be prolonged unnecessarily).

The second daughter told the Tribunal that at least 15 years ago she had a discussion with her mother about quadriplegia. Her mother had expressed the view that a person in that state would be better off not being alive.

The third daughter gave evidence that years before becoming ill her mother discussed with her a person she'd heard or read about who was left incapacitated. She had said that "she [(the proposed represented person)] would never want to continue" if something like that ever happened to her.

During the hearing the Tribunal canvassed the possibility of the appointment of the applicant as guardian, or the Public Advocate, or the applicant and the Public Advocate jointly. When the Tribunal enquired as to the family's attitude to the appointment of the Public Advocate as guardian, the applicant said that as long as a guardianship order served his wife and resulted in her wishes being fulfilled then he had no objection to whomever was appointed. He told the Tribunal that his only concern was that his wife no longer suffer. Both the applicant and the Public Advocate told the Tribunal that they would accept a joint appointment if considered appropriate.

The questions for determination in this case are ultimately legal ones. Allowing for some differences in the medical circumstances, what was said by Sir Thomas Bingham M.R. in Airedale National Health Service Trust v Bland [1992] UKHL 5; [1993] AC 789 (Bland) about that case, however, could equally be said about this case:

"The present [application] raises moral, legal and ethical questions of a profound and fundamental nature, questions literally of life and death. The case has naturally provoked much public discussion and great anxiety. Strong and sincerely held opinions have been expressed both in favour of the decision [sought] and against it. The issues are such as inevitably to provoke divisions of opinion. But they are fairly and squarely before the [Tribunal] ..." (at p. 808).

"It is ... important to be clear from the outset what the case is, and is not, about. It is not about euthanasia, if by that is meant the taking of positive action to cause death. It is not about putting down the old and the infirm, the mentally defective or the physically imperfect. It has nothing to do with the eugenic practices associated with fascist Germany. The issue is whether artificial feeding ... may lawfully be withheld from an insensate patient with no hope of recovery when it is known that if that is done the patient will shortly thereafter die." (at p. 808).

The Tribunal refers to Bland in more detail below but notes first that there were no statutes for the Court to consider there which were comparable to the Victorian Guardianship and Administration Act 1986 and the Medical Treatment Act 1988.

Among the key provisions of the Guardianship and Administration Act 1986 is section 22 which provides:

"(1) If the Tribunal is satisfied that the person in respect of whom an application for an order appointing a guardian is made -

(b) is unable by reason of the disability to make reasonable judgments in respect of all or any of the matters relating to her or his person or circumstances; and

the Tribunal may make an order appointing a plenary guardian or a limited guardian in respect of that person.

(2) In determining whether or not a person is in need of a guardian, the Tribunal must consider -

(a) whether the needs of the person in respect of whom the application is made could be met by other means less restrictive of the person's freedom of decision and action; and

(b) the wishes of any nearest relatives or other family members of the proposed represented person; and

(c) the desirability of preserving existing family relationships.

(3) The Tribunal cannot make an order under sub-section (1) unless it is satisfied that the order would be in the best interests of the person in respect of whom the application is made.

(4) The Tribunal cannot make an order appointing a plenary guardian unless it is satisfied that a limited guardianship order would be insufficient to meet the needs of the person in respect of whom the application is made.

(5) Where the Tribunal makes an order appointing a limited guardian in respect of a person the order made must be that which is the least restrictive of that person's freedom of decision and action as is possible in the circumstances."

Section 3(1) provides that "disability", in relation to a person, means "intellectual impairment, mental disorder, brain injury, physical disability or dementia".

It is convenient to record at this point that the Tribunal is satisfied that the proposed represented person has a disability and that, by reason of the disability, she is unable to make reasonable decisions about her person or circumstances. (There was some divergence of medical opinion whether the proposed represented person could be said to be in a persistent vegetative state. What is significant, though, is the evidence of her clinical condition and prognosis. The Tribunal notes, incidentally, that the relevant overseas common law authorities which support the applicant's case did not exclusively concern persons said to be in a persistent vegetative state).

The next issue is whether the proposed represented person is in need of a guardian. The Public Advocate submitted that a guardian should not be appointed unless there is a decision required to be made or there is a reasonable likelihood that a decision will be required to be made in the foreseeable future. He submitted, further, that it follows that for a decision to be required to be made there must be a decision which can be made. The Tribunal accepts those submissions.

The question is then whether a guardian could make the decision which has been foreshadowed, that is whether a guardian could validly execute a refusal of treatment certificate under the Medical Treatment Act 1988.

Before dealing with that question it is convenient for the Tribunal to refer to section 28 of the Guardianship and Administration Act 1986 which provides:

"(1) A guardian must act in the best interests of the represented person.

(2) Without limiting sub-section (1), a guardian acts in the best interests of a represented person if the guardian acts as far as possible -

(b) in such a way as to encourage the represented person to participate as much as possible in the life of the community; and

(c) in such a way as to encourage and assist the represented person to become capable of caring for herself or himself and of making reasonable judgments in respect of matters relating to her or his person; and

(d) in such a way as to protect the represented person from neglect, abuse or exploitation; and

(e) in consultation with the represented person, taking into account, as far as possible, the wishes of the represented person."

Right to Life Australia Inc. made reference to this section. Not all paragraphs of sub-section (2) have practical application in this case. The opening words of sub-section (2), however, make clear that the sub-section does not limit sub-section (1) in providing that a guardian must act in the best interests of a represented person: the person's best interests contemplate matters beyond those set out in sub-section (2).

When considering the material provisions of the Medical Treatment Act 1988, it is helpful to keep in mind the preamble to the Act.

(a) to give protection to the patient's right to refuse unwanted medical treatment;

(b) to give protection to medical practitioners who act in good faith in accordance with a patient's express wishes;

(c) to recognise the difficult circumstances that face medical practitioners in advising patients and providing guidance in relation to treatment options;

(d) to state clearly the way in which a patient can signify his or her wishes in regard to medical care;

(e) to encourage community and professional understanding of the changing focus of treatment from cure to pain relief for terminally-ill patients;

(f) to ensure that dying patients receive maximum relief from pain and suffering."

Section 1 then provides:

(a) to clarify the law relating to the right of patients to refuse medical treatment;

(b) to establish a procedure for clearly indicating a decision to refuse medical treatment;

(c) to enable an agent to make decisions about medical treatment on behalf of an incompetent person."

Section 4 includes these sub-sections:

"(1) This Act does not affect any right of a person under any other law to refuse medical treatment.

(2) This Act does not apply to palliative care and does not affect any right, power or duty which a registered medical practitioner or any other person has in relation to palliative care ..."

"(1) A decision about medical treatment of a person may be made in accordance with this Act -

... (b) if the person is a represented person and an appropriate order has been made under the Guardianship and Administration Act 1986 providing for decisions about medical treatment, by the person's guardian." (Emphasis added).

(The Tribunal will return to the term "appropriate order").

Section 5B, under the heading "Refusal of treatment certificate by agent or guardian" provides:

"(1) If a registered medical practitioner and another person are each satisfied -

(a) that the patient's agent or guardian has been informed about the nature of the patient's current condition to an extent that would be reasonably sufficient to enable the patient, if he or she were competent, to make a decision about whether or not to refuse medical treatment generally or of a particular kind for that condition; and

(b) that the agent or guardian understands that information -

(d) may refuse medical treatment of a particular kind-

"(2) An agent or guardian may only refuse medical treatment on behalf of a patient if -

(a) the medical treatment would cause unreasonable distress to the patient; or

(b) there are reasonable grounds for believing that the patient, if competent, and after giving serious consideration to his or her health and well-being, would consider that the medical treatment is unwarranted."

Section 5B(3) then provides that where a refusal is made by an agent or a guardian a refusal of treatment certificate must be completed in the form of Schedule 3 to the Act.

"(1) A registered medical practitioner or a person acting under the direction of a registered medical practitioner who, in good faith and in reliance on a refusal of treatment certificate, refuses to perform or continue medical treatment which he or she believes on reasonable grounds has been refused in accordance with this Act is not -

(a) guilty of misconduct or infamous misconduct in a professional respect; or

because of the failure to perform or continue that treatment".

There are different ways of speaking about the relevant measures which have been put in place for the care of the proposed represented person. For sake of simplicity the Tribunal will refer to those measures as artificial nutrition and hydration, but the evidence shows that they have included not only the surgical procedure to insert the tube and the maintenance of the tube but also the administering of medication through it. Do those measures constitute medical treatment (which may be refused) or palliative care (which may not be refused) under the Medical Treatment Act 1988?

Section 3 (1) of the Act contains these 2 very important definitions:

(b) the administration of a drug or other like substance; or

(a) the provision of reasonable medical procedures for the relief of pain, suffering and discomfort; or

The artificial nutrition and hydration would be "palliative care" if regarded as "the provision of reasonable medical procedures for the relief of pain, suffering and discomfort" or, alternatively, if regarded as "the reasonable provision of food and water". If the artificial nutrition and hydration is "palliative care" then the Act does not permit its refusal. There would then be no need for a guardian because there would be no decision which a guardian could make, at least under the Medical Treatment Act 1988. However, even if it were regarded as "medical treatment" still there would be no need for a guardian if there could be no decision because the circumstances required by section 5B (2) before a guardian may refuse medical treatment were found not found to exist (those circumstances being either that the medical treatment would cause unreasonable distress to the patient, or that there were reasonable grounds for believing that the patient, if competent, and after giving serious consideration to his or her health and well-being, would consider that the medical treatment was unwarranted).

Dictionary definitions of "palliative care" do not provide great assistance. For instance, the expression is defined in the Macquarie Dictionary (Revised Third Edition) as "the total care of patients whose disease is not responsive to curative treatment, including attention to the needs of their family, etc." The Shorter Oxford English Dictionary (1980) includes as a definition of "palliative" "serving to relieve (disease) superficially or temporarily, or to mitigate (pain, etc.)" In Butterworths Medical Dictionary (Second Edition) these definitions of "palliative" appear: "1. Serving to mitigate pain or the severity of a disease. 2. A medicine which alleviates but does not cure."

Section 35 of the Interpretation of Legislation Act 1984 provides in that in the interpretation of a provision of an Act or subordinate instrument -

"(a) a construction that would promote the purpose or object underlying the Act or subordinate instrument (whether or not that purpose or object is expressly stated in the Act or subordinate instrument) shall be preferred to a construction that would not promote that purpose or object; and

(b) consideration may be given to any matter or document that is relevant including but not limited to - ...

(ii) reports of proceedings in any House of the Parliament; ... and

(iv) reports of Royal Commissions, Parliamentary Committees, Law Reform Commissioners and Commissions, Boards of Inquiry or other similar bodies."

The Second and Final Report of the Social Development Committee of the Victorian Parliament entitled Inquiry into Options for Dying with Dignity ("the Parliamentary Committee Report") quotes, at page 202, the following statement from the Commonwealth Department of Health's Task Force on Palliative Care's Preliminary Background Paper on Palliative Care in Australia (February 1986):

"There are numerous definitions of palliative care, many of which go beyond a definition of the concept to descriptions of particular underpinning philosophies or specific forms or models of provision."

The Parliamentary Committee Report includes these definitions:

"Palliative care is defined more broadly than hospice care. It is the alleviation of pain and symptoms once cure of the underlying disease is no longer perceived as possible ..." (Health Department of Victoria policy statement entitled Palliative Care Policy and Program Discussion Paper, December 1986, at page 201); and

"The term `palliation' is defined as `alleviation without cure' and `palliative' as giving temporary or partial relief ..." (The Report of the Ministerial Committee to Review Cancer Services in Victoria, October 1985, at page 202).

The Public Advocate's submission traced the process by which the definition of "palliative care" came to be enacted in its present form and referred to general statements of the legislation's underlying philosophy. The Tribunal has considered those submissions and consulted Hansard directly. It is necessary to cite a few passages only.

The second reading speech in the Legislative Assembly contains this statement:

"One important theme of the [Parliamentary Committee Report] is its emphasis on the role of palliative care in the treatment of the dying. Where patients are no longer likely to live because of the disease or illness which afflicts them, palliative care should, in the view of the committee, become the basis of their treatment. Accordingly, ongoing treatment should be designed to mitigate the pain of the disease or illness and allow, so far as possible, the patient to have a peaceful death." (Hansard, Legislative Assembly, 5 May 1988, pp. 2165-6).

"A definition of `palliative care' has been included in the Bill. The definition of `palliative care' covers treatment for the relief of pain, suffering or discomfort and specifically the reasonable provision of food and water." (at p. 2167).

The first speaker to oppose the Bill, Mr. John, remarked that it did "not apply to pain-relieving care and the ordinary provision of food": Hansard, Legislative Assembly, 5 May 1988, p. 2243. The Public Advocate submitted that the reasonable inference to be drawn was that the Member was drawing a distinction between oral feeding and artificial feeding. At least one other passage in Hansard seems consistent with the position that Parliament understood and intended artificial hydration and nutrition to be distinguishable from the "reasonable provision of food and water". Mrs. Ray, a member of the Parliamentary Committee, speaking in support of the Bill posed a hypothetical situation where a person's spouse had "a ventilator, a resuscitator, tubes for feeding and intravenous drips for liquid intake": Hansard, Legislative Assembly, 5 May 1988, p. 2263. Overall the report of proceedings in Parliament do not greatly assist the Tribunal.

Dr. Syme and Dr. Woodward expressed opposing views on whether artificial nutrition and hydration constituted "medical treatment". The Public Advocate however submitted a letter written by Dr. P. Hunter, Director of Aged & Continuing Care, Senior Geriatrician, St. Vincent's Health, dated 18 December 2002 and addressed to the Senior Guardian, Office of the Public Advocate. Dr. Hunter wrote:

"... Th[e] view of tube feeding as medical therapy is the prevailing belief both ethically and medically".

The question whether feeding by nasogastric tube was medical treatment was considered by the House of Lords on appeal in Bland. In that case there was near unanimous medical support for the view that it was a form of medical treatment. A majority of the members of the House of Lords agreed. Lord Keith of Kinkel stated, at p. 858:

"... I am of the opinion that regard should be had to the whole regime, including the artificial feeding, which at present keeps [the patient] alive. That regime amounts to medical treatment and care, and it is incorrect to direct attention exclusively to the fact that nourishment is being provided. In any event, the administration of nourishment by the means adopted involves the application of a medical technique."

"There is overwhelming evidence that, in the medical profession, artificial feeding is regarded as a form of medical treatment; and even if it is not strictly medical treatment, it must form part of the medical care of the patient."

"the overwhelming verdict of informed medical opinion worldwide, with particular reference to the common law jurisdictions, where the relevant law generally corresponds closely with our own, that therapy and life-supporting care, including sophisticated methods of artificial feeding, are components of medical treatment ... In this connection it may also be emphasised that an artificial feeding regime is inevitably associated with the continuous use of catheters and enemas and the sedulous avoidance and combatting of potentially deadly infection."

(The common law jurisdictions to which his Lordship referred included the United States of America. In Cruzan v. Director, Missouri Department of Health [1990] USSC 122; (1990) 497 US 261 the Supreme Court expressed the view that "feeding by implanted tubes [was] `a medical procedur[e] with inherent risks and possible side effects, instituted by skilled healthcare providers to compensate for impaired physical functioning' which analytically was equivalent to artificial breathing using a respirator": per Chief Justice Rehnquist at p. 274).

Lord Browne-Wilkinson in Bland stated that the "critical decision to be made is whether it is in the best interests of [the patient] to continue the invasive medical care involved in artificial feeding." (at p. 884. Emphasis added). Finally, Lord Mustill spoke of "invasive care and treatment" (especially at p. 898).

Putting to one side Lord Lowry's comments about the maintenance of artificial feeding, the Tribunal received evidence concerning the invasive surgical procedure involved in the insertion of the PEG, upon which it is unnecessary to dwell.

In the Tribunal's view artificial nutrition and hydration supplied via a tube is "medical treatment" within the meaning of the Medical Treatment Act 1998. (There will be more to say concerning the distinction, which may not always be straightforward in practice, but which appears to have been clearly drawn in this case, between measures which are palliative and those which are therapeutic or curative or similar and, for that reason, not palliative).

The submission by Right to Life Australia Inc. included articles by ethicists, one commenting on Bland and arguing in the case of nasogastric tube feeding that "although naso-gastric feeding will not normally be established without a doctor's decision, no distinctively medical skills are needed to insert a naso-gastric tube or maintain the supply of nutrients through it": Finnis Bland: Crossing the Rubicon? (1993) 109 L.Q.R. 329 at p. 335. Further, Dr. Keith Andrews, who gave expert evidence in Bland, later reiterated his view that treatment was given to treat an abnormality and said that he could not see what abnormality the food was supposed to be treating: Andrews Patients in the persistent vegetative state: problems in their long term management, British Medical Journal Volume 306, 12 June 1993 p. 1600.

On the other hand, included in the materials submitted by Right to Life Australia Inc. on 7 February 2003 was a Report for the Medical Council of New Zealand by the Bioethics Research Centre, University of Otago, February 1993, entitled Persistent Vegetative State and the Withdrawal of Food and Fluids ("the New Zealand report"). At page 38 the following appears:

"We argue that the provision of such food and fluids [ie. artificial nutrition and hydration] is a medical procedure because:

a) the selection of the method by which food and fluids are given is a medical decision, as it requires careful medical judgment as to the advantages and disadvantages ... of the various methods of giving food and fluids, for example, choosing a nasogastric tube rather than a gastrostomy tube or IV alimentation.

b) the use of a gastrostomy tube is possible only by the placement of a stoma in the abdominal wall, which is a medical or surgical procedure. The placement of a nasogastric tube is also a medical procedure and if done incorrectly can cause complications, for example death due to `pithing' the diencephalon through a hypophysectomy wound.

c) once the tubes are in place they must be monitored by attending health care professionals to make sure that complications do not arise.

d) a physician must monitor the patient's response to the nutrients provided, and adjust the therapy in the light of any complications."

The New Zealand Report concludes with this statement:

"The provision of food and fluids may have symbolic significance, but this is greatly attenuated where the means of delivering them are by technological intrusions into a person's body and the normal relational context is not present. Therefore this claim ought not to sway our thinking if other indications for the withdrawal are present." (at p. 39).

The Public Advocate submitted, and the Tribunal accepts, that it is artificial to distinguish between the tube and that which is administered via the tube. And it must be borne in mind that what is administered via the tube is not limited to nutrients but includes medication.

The Right to Life Australia Inc. submission also included articles by Dr. Andrews and others describing the physical effect of withdrawing artificial food and nutrition. The Tribunal has recorded Dr. Woodward's comments on this subject. There may therefore be some medical controversy surrounding the matter, but consistent with the aims of palliative care, measures are clearly available for the relief of any pain and suffering.

At page 19 of the New Zealand Report this statement appears:

"It is misleading to describe the effects of withdrawing [artificial nutrition and hydration] as causing the patient to die of `starvation' and `thirst' - we have no reasons to believe that either term applies to the patient in a [persistent vegetative state]."

Returning to the definitions in the Medical Treatment Act 1988, if artificial nutrition and hydration is "medical treatment" the question then arises whether in the circumstances of this case it is nevertheless "the provision of reasonable medical procedures for the relief of pain, suffering and discomfort" and so within the meaning of "palliative care" in section 3 (1). There was evidence that the PEG was inserted when the proposed represented person had the capacity to walk, to assist her to remain mobile. It has not served that purpose for a long time and the Tribunal is satisfied that her condition is such that it cannot be said to serve the purpose of relieving pain, suffering and discomfort (or to serve any curative or similar purpose).

Lastly, the Tribunal must consider whether artificial nutrition and hydration is the "reasonable provision of food and water". There may be doubt whether it is properly to be regarded as "food" but the Public Advocate did not submit that it should not be regarded as food. He submitted rather that in the circumstances it was not the "reasonable provision of food and water." The Public Advocate submitted that whatever meaning is given to the term "reasonable", "the provision of food and water cannot be said to be reasonable when it is provided to a person who is dying, not for the primary purpose of palliation, but with the aim of deferring or suspending the process of dying." The Tribunal agrees with that submission.

It must now be considered whether the circumstances required by section 5B (2) can be said to exist.

The Public Advocate did not submit that the medical treatment would now cause unreasonable distress to the proposed represented person. He said he could not be satisfied about this matter because she could not communicate. What the applicant described as "seizures" may be thought to indicate discomfort but this had to be considered in the light of Dr. Woodward's findings, he submitted.

On the other hand the Public Advocate did submit that there were reasonable grounds for believing that the proposed represented person, if competent, and after giving serious consideration to her health and well-being, would consider that the medical treatment was unwarranted.

The Tribunal accepts the evidence given by the applicant and his daughters that the proposed represented person had more than once expressed the desire not to have her life prolonged in the kind of circumstances which now exist. On this basis the requirement in section 5B(2)(b) may be satisfied. Even without such evidence, however, it would be open to say that she "would consider that the medical treatment [was] unwarranted" if there was clear medical evidence to the effect that there was no prospect for recovery or improvement, and there was no evidence to suggest that she wished or would wish to prolong her life whatever the circumstances.

The Tribunal concludes that the proposed represented person is in need of a guardian. There is a decision which is required to be made for, as remarked by Hoffman L.J. in Bland, "[w]e cannot disclaim this choice because to go on is as much a choice as to stop" (at p. 830). Further, there is a decision which can be made because in the circumstances of this case a guardian may refuse artificial nutrition and hydration being "medical treatment" within the meaning of the Medical Treatment Act 1988.

Having stated its conclusion it is nevertheless necessary for the Tribunal to go further in giving reasons for its decision. The Tribunal must not make a guardianship order unless satisfied that it would be in the best interests of the proposed represented person to do so. Moreover, not only have submissions have been made that a guardianship order should not be made (on grounds including that to cease artificial nutrition and hydration would be unlawful homicide) but also, consistent with the experience reported in other jurisdictions, general community concern about this case may be expected, especially if the principles on which the Tribunal's decision is based are not clearly articulated.

The submissions received by the Tribunal were accompanied by judicial decisions and various publications including articles by ethicists and others. It is clear from the articles that, among ethicists, some debate continues not only about whether artificial nutrition constitutes "medical treatment" but also about the circumstances, if any, in which it is permissible for artificial nutrition and hydration to be withdrawn or discontinued.

Of the various common law authorities cited Bland is the most significant. The circumstances which gave rise to the application in that case are set out in detail by Sir Stephen Brown P. at pp. 795 et seq. of the report. It is convenient to summarise those circumstances.

At the age of 17 ½ years Anthony Bland suffered a severe crushed chest injury which gave rise to hypoxic brain damage when he was a victim of the Hillsborough stadium disaster on 15 April 1989. He remained in a persistent vegetative state. His brain stem was intact but he suffered irreparable damage to the cortex. It was the unanimous opinion of all doctors who had examined him that there was no hope whatsoever of recovery or improvement of any kind. His body breathed and reacted in a reflex manner to painful stimuli but it was clear that there was no awareness to anything which was taking place around him. EEG and CT scans revealed no evidence of cortical activity. There was more space than substance in the relevant part of his brain. He was fed "artificially and mechanically" by a nasogastric tube. All natural bodily functions had to be operated with nursing intervention. The doctor caring for Anthony Bland concluded by August 1989 that there was absolutely no hope of any improvement in his condition. His opinion was supported by a consultant neurologist. It was considered appropriate, therefore, to cease further treatment. This would involve withdrawing the artificial feeding through the nasogastric tube and declining antibiotic treatment if and when infection appeared.

"If this course were to be adopted then within some 10 to 14 days the lack of sustenance would bring an end to the physical functioning of the body of Anthony Bland and he would in terms `die'. The process would be that of `starvation.' This would be unpleasant for those who had to observe it but Anthony Bland himself would be totally unaware of what was taking place." (at p. 796).

Anthony Bland could not express views of his own and there had been no occasion for him to express any view as to how he might view his situation in the event of his injury.

After obtaining legal advice the Trust responsible for managing the hospital, with the support of Anthony Bland's parents and family, issued an originating summons seeking declarations. The Official Solicitor was appointed guardian ad litem for Anthony Bland and opposed the application contending that if the proposed action were implemented it would in terms amount in law to the crime of murder. The Court invited the Attorney-General to assist and so counsel appeared as amicus curiae.

As noted earlier, there were no statutes in operation comparable to those considered in the present case.

There was some variance in the analyses by which the Law Lords arrived at their conclusion - including whether the discontinuation of artificial feeding constituted an act or omission; questions of causation; even whether the act or omission could be said to be in the patient's best interests: see, for instance, Lord Mustill's remark, at p. 897 that "the proposed conduct is not in the best interests of Anthony Bland, for he has no best interests of any kind." Their unanimous conclusion, however, was that the discontinuation of artificial feeding would be lawful in the circumstances. (The conclusion at first instance and by all members of the Court of Appeal was the same).

In passing, the Tribunal expresses its disagreement with Lord Mustill's remark concerning best interests. A person's lack of awareness may mean that he or she can not know what may be in his or her best interests. Alternatively, a person may be unable to communicate his or her views. This does not mean, however, that the person cannot have interests or that other persons including doctors, agents, guardians, (or courts or tribunals), cannot make conscientious and sound judgments as to what are the person's best interests.

The Tribunal has had regard to the judgments in Bland and other relevant cases including the decision of the High Court of New Zealand in Auckland Area Health Board v. Attorney General [1993] 1 NZLR and the Quebec Superior Court in Nancy B.Hotel-Dieu de Quebec (1992) 86 D.L.R. (4th) 385. In particular, the Tribunal adopts the following statements which it has found highly persuasive.

"[T]he fundamental principle [of law] is the principle of the sanctity of human life - a principle long recognised not only in our own society but also in most, if not all, civilised societies throughout the modern world, as is indeed evidenced by its recognition ... in article 6 of the International Covenant of Civil and Political Rights 1966.

But this principle, fundamental though it is, is not absolute ...[T]here is no absolute rule that [a] patient's life must be prolonged by such treatment or care, if available, regardless of the circumstances." ((Bland per Lord Goff of Chieveley at pp. 863-4)."

"[D]iscontinuation of life support is, for present purposes, no different from not initiating life support in the first place. In each case, the doctor is simply allowing his patient to die in the sense that he is desisting from taking a step which might, in certain circumstances, prevent his patient from dying as a result of his pre-existing condition; and as a matter of general principle an omission such as this will not be unlawful unless it is constitutes a breach of duty to the patient ... [I]f the justification for treating a patient who lacks the capacity to consent lies in the fact that the treatment is provided in his best interests, it must follow that the treatment may, and indeed ultimately should, be discontinued where it is no longer in his best interests to provide it." (per Lord Goff at pp. 866-7)

Lord Goff went on to say that the question was whether on that principle the doctors responsible for the treatment and care of the patient could justifiably discontinue the process of artificial feeding upon which the prolongation of his life depended. The Tribunal regards the following passage as having special importance:

"It is crucial for the understanding of this question that the question itself should be correctly formulated. The question is not whether the doctor should take a course which will kill his patient, or even take a course which has the effect of accelerating his death. The question is whether the doctor should or should not continue to provide his patient with medical treatment or care which, if continued, will prolong his patient's life. The question is sometimes put in striking or emotional terms, which can be misleading. For example, in the case of a life support system, it is sometimes asked: should a doctor be entitled to switch it off, or to pull the plug? And then it is asked: can it be in the best interests of the patient that a doctor should be able to switch the life support system off, when this will inevitably result in the patient's death? Such an approach has rightly been criticised as misleading ...This is because the question is not whether it is in the best interests of the patient that he should die. The question is whether it is in the best interests of the patient that his life should be prolonged by the continuance of this form of medical treatment or care.

The correct formulation of the question is of particular importance in a case such as the present, where the patient is totally unconscious and where there is no hope whatsoever of any amelioration of his condition. In circumstances such as these, it may be difficult to say that it is in his best interests that the treatment should be ended. But if the question is asked, as in my opinion it should be, whether it is in his best interests that treatment which has the effect of artificially prolonging his life should be continued, that question can sensibly be answered to the effect that his best interests no longer require that it should be." (per Lord Goff at p. 868; see also Lord Browne-Wilkinson at p. 884).

Auckland Area Health Board v. Attorney General [1993] 1 NZLR was a case involving a 59 year old man diagnosed with an extreme case of Guillain-Barre syndrome. The High Court was asked to declare whether doctors would be guilty of culpable homicide under the New Zealand Crimes Act 1961. Thomas J put the matter in this way:

"Such phrases [as "pulling the plug" and "switching off the machine"] are not only misleading, but also inject into the subject an emotional element which is harmful to a dispassionate consideration of what is a momentous issue ... The common use of such uninformed language ... facilitates the wrong impression. It seems to presuppose that the life of the patient is being `terminated' thus invoking all the emotional overtones which such a perception carries. In fact, in a case such as this all natural life has ceased and will never return. It is the manifestations of life, such as heartbeat and breathing, which are maintained by the artificial means which are brought to an end by the doctor's intervention." (at p. 247).

In Bland, Lord Goff and others drew a distinction between cases where, in medical terms, treatment was futile so that discontinuation of the treatment was justified and cases where the treatment was an aid to diagnosis; for the treatment of physical or mental injury or illness; to alleviate pain and distress; or to make the patient's condition more tolerable. These general purposes may include prolonging the patient's life, for example to enable the patient to survive during diagnosis and treatment. Lord Goff added, however:

"But for my part I cannot see that medical treatment is appropriate or requisite simply to prolong a patient's life, when such treatment has no therapeutic purpose of any kind, as where it is futile because the patient is unconscious and there is no prospect of any improvement in his condition." (at p. 869; see also Sir Thomas Bingham M.R. at p. 809).

Although the Tribunal agrees with his Lordship's statement, the expression "therapeutic purpose" seems narrow. It is preferable that medical treatment for purposes such as those mentioned in the preceding paragraph (with the exception of the purpose "to alleviate pain and distress" which clearly means palliative care) be described as medical treatment for the purpose of providing a medical benefit to the patient - that is, medical treatment for a "medical purpose". (The Tribunal will develop that point later in these reasons).

It must be emphasised that, of course, as Thomas J. remarked in Auckland Area Health Board, at p. 248, "[t]here may be many circumstances in which a patient is kept alive by a life-support system where it would not be appropriate to discontinue that support."

Where treatment is not, in medical terms, futile the circumstances required by section 5B (especially section 5B (2) (b)) of the Medical Treatment Act 1988 before a guardian may refuse medical treatment will not be likely to exist. Whatever the position, as was pointed out in Bland, there should be safeguards. Medical safeguards would promote confirmation of the diagnosis and prognosis. (Legal safeguards proposed in Bland were proposed in the context where there was no equivalent legislation to the Medical Treatment Act 1988 and so recourse to the Court was necessary: see Bland, especially at pp. 859, 873 - 4; see further Practice Direction [2002] 1 All E.R. 794 (cited by Right to Life Australia Inc.) and the British Medical Association Guidelines entitled Withholding and Withdrawing Life Prolonging Medical Treatment 2000 ("the British Medical Association Guidelines") (cited by the Public Advocate).

It is necessary now to consider some of the other issues raised in the amended written submissions made by Right to Life Australia Inc.

Right to Life Australia Inc. renewed the application for access to evidence and submissions in the Tribunal's possession. For reasons outside her control senior counsel for Right to Life Australia Inc. arrived after oral evidence had been given and oral submissions made. Right to Life Australia Inc. was not a party to the proceeding or a person entitled to notice of the proceeding: see Victorian Civil and Administrative Tribunal Act 1998 section 59, and Guardianship and Administration Act 1986 section 20. There was no basis upon which to join that organisation as a party under section 60 of the Victorian Civil and Administrative Tribunal Act 1998. Although section 60 (1) (c) of that Act gives the Tribunal wide discretion concerning the joinder of parties, where Right to Life Australia Inc. sought to make submissions on "on the broad public interest question", and where it was given leave to make written submissions, joinder is not required - nor would it be desirable, given especially the most sensitive and personal nature of the proceeding. (It may be noted incidentally that section 20 of the Guardianship and Administration Act 1986 recognises narrow categories of persons entitled to notice. Other provisions in the legislation permit closed hearings and restrictions on media reporting of proceedings (the latter of which was the subject of rulings during the hearing which are unnecessary to restate here): see section 101 and Schedule 1, Part 9, clause 37, Victorian Civil and Administrative Tribunal Act 1998).

Access to written evidence and submissions - being part of the Tribunal's proceeding file - is governed by section 146 of the Victorian Civil and Administrative Tribunal Act 1998 and Part 5 of the Victorian Civil and Administrative Tribunal Rules 1998. Rule 6.23 sets out conditions to which the right of a party to inspect the proceeding file are subject. One ground for refusal is that access would "involve the unreasonable disclosure of information relating to the personal affairs of any person": Rule 6.23(c)(ii) and (d)(ii). (Emphasis added).

Rule 6.24 sets out conditions to which the right of a person other than a party to inspect the proceeding file is subject, providing that -

"... the person shall not be entitled to inspect and obtain a copy of any part of the file relating to the proceeding except to the extent (if any) that a member of the Tribunal authorises the person to do so."

The discretion under 6.24 is therefore not limited in the way which 6.23 appears to be. Nevertheless, the Tribunal considers that to permit access to the proceeding file would involve unreasonable disclosure of information relating to the personal affairs not only of the proposed represented person, but also her husband and their children. Moreover, Right to Life Australia Inc. could not reasonably point to any disadvantage, whether to the proposed represented person, or in any wider context, in its being permitted to make written submissions limited to matters of law and general principle. Accordingly, the renewed request for access to the proceeding file is refused.

Before turning to the submissions themselves, the Tribunal observes that the submissions were predicated on at least one incorrect assumption (probably attributable to a media report of the proceeding) - that the proposed represented person was fed via a nasogastric tube. This of course was not correct but it does not materially affect the submissions nor the Tribunal's consideration of the submissions.

The first submission requiring consideration was that the Public Advocate was not neutral or impartial for the reason that he had a "published position" concerning artificial nutrition and hydration (according to which artificial nutrition and hydration is "medical treatment" which therefore may be refused if the guardian considers that it is in the best interests of a represented person to do so). This submission was made in part to support the participation of Right to Life Australian Inc. in the proceeding as a "contradictor". In the Tribunal's view, however, the fact that the Public Advocate may have publicly expressed his view on a question of law does not in any way detract from his status as a person appointed under the Guardianship and Administration Act 1986 having the functions set out in Part 3 of the Act or his independence generally. As an advocate, and not a judicial or quasi-judicial decision-maker, the Public Advocate may reasonably hold and express views and advocate a position upon such matters.

More general submissions were made, a number of which were the same as or similar to those made on behalf of the Official Solicitor in Bland but which were rejected by the Court. These general submissions included the submission that if a person either by deliberate act or omission caused the death of another person he or she may be guilty of homicide. It is unnecessary to rehearse these arguments. Essentially for the same reasons set out in Bland the Tribunal considers that what is proposed does not involve any criminal act. Whether an act or omission (and the submission was "prepared to assume" the latter for the sake of the argument), although death may be foreseeable, it cannot reasonably said to be intended or to be caused primarily if at all by discontinuation of artificial measures instituted or maintained to prolong life where there is no medical purpose, as the Tribunal has used that term.

A number of decisions were cited which were decided before Bland and which were distinguishable. R v. Russell [1932] ArgusLawRp 98; [1933] VLR 59; R v. Clarke and Wilton [1959] VicRp 84; [1959] VR 645; R v. Taktak (1988) 14 NSWLR 226 and Hall and Hanslow (1999) A Crim R 109 all involved persons whose lives could have been saved but were not saved in circumstances where the Law imposed a duty on the accused. They were cases where, manifestly, inaction by the person under a duty to assist those persons was contrary to their best interests. They were not cases in which a person had been cared for but had reached a point where measures to prolong life could be said to be contrary to the person's best interests.

Re F; F v. F (unreported, Supreme Court of Victoria, 2 July 1986, Vincent J.) concerned a child said to have spina bifida. There was disagreement among relatives of the child and between some of them and the hospital where the child was a patient concerning whether the child should be fed. The possibility of there being an operation was urged upon the court as affecting the prognosis of the child. It is clear that Vincent J. apprehended "a deliberate course of conduct designed to terminate the life of a child" yet he acknowledged that "[d]ifficult problems ... arise from time to time when consideration has to be given to what steps may otherwise be involved in the preservation or continuation of life" (at p. 9). These comments too were made before Bland was decided. However, this was clearly not a case involving the proposed discontinuation of an artificial measure commenced or continued beyond a time when there was any prospect for recovery. Rather, it at least appeared to be a case where before a considered prognosis could be given a decision was made to deny sustenance.

In Re Graeme Michael McKinney (unreported, Supreme Court of Victoria, 23 December 1988, Fullagar J.) the wife of a man who had taken an overdose of drugs, for what was believed to be the purpose of taking his life, applied to the Court for an injunction, among other things to restrain the Public Advocate (his guardian) from consenting to (and to restrain the hospital from carrying out) what was described as a minor procedure intended to arrest some internal bleeding. There was no evidence that the patient did not wish the procedure to be carried out. Fullagar J. denied the application saying that there was no "right to die" and that the Court did not have jurisdiction to interfere with the guardian's legal right to consent to the procedure. Reference was made to the Medical Treatment Act 1988 but the decision has no application to a case in which it is proposed to refuse medical treatment in accordance with that Act.

Northridge v Central Sydney Area Health Service [2000] NSWSC 1241; (2000) 50 NSWLR 549 was decided after Bland though Bland does not appear to have been cited. The patient, a 37 year old man, was admitted to hospital unconscious following a cardiac arrest. Not only was there hope of recovery, contrary to what the family was first advised, but the patient in fact made a significant recovery. The patient's medical status, detailed in the decision, was very different to that of the proposed represented person. Right to Life Australia Inc. cited the following statement by O'Keefe J:

"There is undoubted jurisdiction in the ... Court ... to act to protect the right of an unconscious person to receive ordinary reasonable and appropriate (as opposed to extraordinary, excessively burdensome, intrusive or futile) medical treatment, sustenance and support. In this day and age ordinary reasonable and appropriate treatment, for a person of the age and condition of [the patient], would extend to the administration of antibiotics and appropriate feeding. The Court also has jurisdiction to prevent the withdrawal of such treatment, support and sustenance where the withdrawal may put in jeopardy the life, good health or welfare of such unconscious individual. What constitutes appropriate medical treatment in a given case is a medical matter in the first instance. However, where there is doubt or serious dispute in this regard the court has the power to act to protect the life and welfare of the unconscious person". (at p. 554)

Putting to one side the reference to the age of the patient (which may wrongly influence a decision especially if considered in isolation) the Tribunal does not regard this statement to be at odds either with Bland or with its decision in this case.

Northridge provides a valuable reminder of the vital importance of correct diagnosis. Right to Life Australia Inc. also submitted a number of articles concerning misdiagnosis of persistent vegetative state and case studies where the patient displayed "late improvement". Whilst an accurate diagnosis is essential any consideration of further treatment will depend on the prognosis for the conditions being treated in any individual patient.

The submission that the medical treatment in this case is "not unduly burdensome" is also rejected. Especially when the "whole regime" (as Lord Keith put it in Bland) is considered an undue burden can be seen to exist, regardless of the precise extent to which the proposed represented person can be said to be aware of it. In any event, as statements including the above statement by O'Keefe J. make clear, the burdensomeness or otherwise of the treatment is not the sole consideration.

It was submitted that artificial nutrition and hydration is not futile because it is fulfilling its purpose - that is of providing sustenance. That submission must also be rejected. If that submission were accepted, it is difficult to imagine in what circumstances artificial nutrition and hydration (or for that matter artificial ventilation) could ever be discontinued. The submission involves a narrow concept of "purpose" which, in the Tribunal's view, is not justified in principle or in practice.

Right to Life Australia Inc. also submitted that any views expressed by the proposed represented person would now be several years old and not be based on considerations arising from her present condition. The Tribunal considers that the views which she expressed have the relevance indicated earlier, however, and the provisions in section 5B(2)(b) must be carefully borne in mind. The test is whether there are reasonable grounds for believing that the patient, if competent, and after giving serious consideration to his or her health and well being would consider that the medical treatment is unwarranted.

The submission that Bland does not represent Australian law as to either criminal or civil culpability may be dealt with relatively shortly. The Tribunal has considered various criminal and civil cases but does not purport to decide any question of criminal or civil law. Rather the Tribunal has to decide questions arising under the Medical Treatment Act 1988 in exercising its jurisdiction under the Guardianship and Administration Act 1986.

The further submission that Bland does not represented Australian law because it is founded on an earlier decision in Bolam v. Friern Hospital Management Committee [1957] 1. W.L.R. 582 may also be dealt with relatively shortly. It was correctly submitted that Bolam was not followed by the High Court of Australia in Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479: see also Naxakis v. Western General Hospital (1999) CLR 269. Bolam and Rogers v. Whitaker concerned a different issue, however - the standard of care in negligence - and it is clear that Bland was in no way founded on Bolam. Nothing which the Court in Bland had to say about the role of "medical opinion" affects the principle that a decision may lawfully be made that artificial nutrition and hydration be discontinued in certain circumstances.

The Tribunal now addresses what appeared to be a submission that section 38 of the Guardianship and Administration Act 1986 prescribes matters which must be taken into account in determining whether any medical treatment would be in the best interests of a patient. Section 38 falls within Part 4A of the Act. Part 4A, headed "Medical And Other Treatment", effectively provides for substitute decision-making for adult patients who have a disability and who by reason of the disability are incapable of giving consent to "medical or dental treatment", among other things.

Section 3 (1) of the Guardianship and Administration Act 1986 provides that "medical or dental treatment" means -

"(a) medical treatment (including any medical or surgical procedure, operation or examination and any prophylactic, palliative or rehabilitative care) normally carried out by, or under, the supervision of a registered practitioner; ..." (Emphasis added).

Section 39 provides that consent to medical or dental treatment may be given by the "person responsible" for the patient. The "person responsible" is defined in the Act. There are provisions for the case where the person responsible does not consent but the practitioner believes that the medical or dental treatment is in the patient's best interests: section 42L. Section 41 provides that a practitioner must not carry out any medical or dental treatment that is medical treatment within the meaning of the Medical Treatment Act 1988 if a refusal of that treatment is in force in accordance with that Act.

It is clear, therefore, that Part 4A is concerned with substitute consent to medical treatment, including (according to the definition in the Guardianship and Administration Act 1986) palliative care. Therefore, while section 38 sets out matters which must be taken into account when determining whether medical treatment (including - under this Act - palliative care) would be in the best interests of a patient (including the consideration in paragraph "(f) whether the treatment to be carried out is only to promote and maintain the health and well-being of the patient"), those matters are not legislated to be required to be taken into account when determining whether to refuse medical treatment (not including palliative care) under the Medical Treatment Act 1988.

Accordingly, the Tribunal rejects the submission that a guardianship order is not needed because "[s]ubject to the criminal law" the applicant (as "person responsible" within the meaning of Part 4A) "would appear to have authority to give and withhold consent as to the care and treatment of his wife".

The Tribunal does not accept the submission that what is proposed is not lawful because death is not imminent. Whether death can be said to be imminent is not the material question, as is clearly demonstrated by Bland. Moreover, where by use of technology death can be "postponed indefinitely" (in the words of Thomas J. in the Auckland Area Health case at p. 253) it may not be possible to say that death is imminent even though, but for the use of that technology, it is reasonable to assume that natural death would have already occurred.

It should be made clear at this point that the Tribunal's decision does not require that the guardian take any action. The Tribunal's decision, recognising the need for a decision by a guardian, is to appoint a guardian and empower the guardian to make decisions in the best interests of the proposed represented person.

Right to Life Australia Inc. also referred in its submission to significant numbers of persons "with serious impairments" who may be affected by the Tribunal's decision in this case. The Tribunal is mindful of its responsibility to such persons but each case will require careful and conscientious consideration of the individual circumstances by everyone involved.

Finally, towards the end of the submission reference was made to the "long established ethical and legal position that no-one's life is to be judged not worth living". It should be clear from a careful reading of the Tribunal's decision in this case and of decisions such as Bland that those decisions do not in any way depart from or threaten that position. It may be added here that expressions like "quality of life" are dangerous and so have been avoided by the Tribunal: as to this point see the discussion in the British Medical Association Guidelines at p. 3. The Tribunal views it as a central proposition that the question is never whether the patient's life is worthwhile but whether the treatment is worthwhile.

The suggestion that the Tribunal's decision in this case might threaten the "long established ethical and legal position" puts the Tribunal in mind of what was referred to in Bland and elsewhere as the "slippery slope". The Tribunal wishes to say, adapting the words of Lord Goff in Bland (at p. 873) that, on the contrary, as the Tribunal has sought to demonstrate, the Tribunal (and the courts) are acting within a structure of legal principle, under which they continue to draw a clear distinction between the bounds of lawful treatment of a living patient, and unlawful euthanasia.

The persons proposed as guardian were the applicant and the Public Advocate. The possibility of joint guardianship was also canvassed.

Section 23 of the Guardianship and Administration Act 1986 provides:

"(1) The Tribunal may appoint as a plenary guardian or limited guardian any person who has attained the age of 18 years and consents to act as guardian if the Tribunal is satisfied that that person -

(a) will act in the best interests of the proposed represented person; and

(b) is not in a position where the person's interests conflict or may conflict with the interests of the proposed represented person; and

(c) is a suitable person to act as the guardian of the proposed represented person.

(2) In determining whether a person is suitable to act as the guardian of a represented person, the Tribunal must take into account -

(a) the wishes of the proposed represented person; and

(b) the desirability of preserving existing family relationships; and

(c) the compatibility of the person proposed as guardian with the proposed represented person and with the administrator (if any) of the proposed represented person's estate; and

(d) whether the person proposed as guardian will be available and accessible to the proposed represented person so as to fulfil the requirements of guardianship of that person.

(3) Where a parent or nearest relative of a proposed represented person is proposed as the guardian that person is not by virtue only of the fact that that person is a parent or nearest relative to be taken to be in a position where the person's interests conflict or may conflict with those of the proposed represented person.

(a) the person in respect of whom the application is made is a person in respect of whom an order could be made under section 22; and

(b) no other person fulfils the requirements of sub-section (1) for appointment as the guardian of that person -

the Tribunal may appoint the Public Advocate as the plenary guardian or limited guardian of that person.

(5) This section does not prevent the Tribunal from appointing persons (including the Public Advocate and any other person) as joint plenary guardians or joint limited guardians of the proposed represented person if -

(a) each person fulfils the requirements of sub-section (1); and

(b) the Tribunal considers it appropriate to do so."

The Tribunal is satisfied that the applicant generally met the criteria in sub-section (1) but still the Tribunal is not obliged to appoint him. In determining a proposed guardian's suitability, the Tribunal must take into account the matters specified in section 23(2) but it does not appear that only those matters may be taken into account.

The reassurance of the public is an important consideration in this case as it was said to be in Bland. Although medical treatment may be refused by a patient or the patient's agent in circumstances which do not involve the Tribunal, where application is made on behalf of an incompetent patient who has not appointed an agent under the Medical Treatment Act 1988 there are sound reasons for appointing an independent guardian. The fact that the Public Advocate may previously have expressed the opinion that artificial nutrition and hydration constitutes "medical treatment" which may lawfully be refused does not disqualify him from participating in the proceeding or make him ineligible to be appointed guardian. Similarly, the fact that any proposed guardian foreshadows a particular course of action does not make that person ineligible where that proposed course of action is lawful and can be demonstrated to be in the best interests of the proposed represented person. Any guardian appointed under the Guardianship and Administration Act 1986 is bound by section 28 to act in the best interests of the represented person. If there were ever a material change in circumstances after the appointment the guardian would obviously be bound to reconsider.

The Public Advocate informed the Tribunal that he would accept a joint appointment with the applicant. Although the applicant had initially sought to be appointed guardian, the applicant made it clear that he would be satisfied if the Public Advocate were appointed. In the circumstances, although there are grounds for confidence that a joint appointment would not be impractical, in the Tribunal's view the preferred course is to appoint the Public Advocate solely.

"It is of course the development of modern medical technology, and in particular the development of life support systems, which has rendered cases such as the present so much more relevant than in the past." (at p. 867).

Lord Lowry spoke (at p. 877) of a gap between "old law" and "new medicine". To "old law" one might add "old language".

As Thomas J. said in the Auckland Area Health case:

"Medical science and technology has advanced for a fundamental purpose; the purpose of benefiting the life and health of those who turn to medicine to be healed. It surely was never intended that it be used to prolong biological life in patients bereft of the prospect of returning to an even limited exercise of human life. Nothing in the inherent purpose of these scientific advances can require doctors to treat the dying as if they were curable. Natural death has not lost its meaning or significance. It may be deferred, but it need not be postponed indefinitely." (at p. 253).

The Tribunal has given the matters before it very careful consideration, recognising that the issues involved in this case are the most serious for the proposed represented person and her family, but potentially also for numbers of other persons who are ill and for those involved in their care; and mindful of continuing debate in some quarters from ethical, moral, religious and legal viewpoints.

The Tribunal had the benefit of hearing from the applicant and those members of his family who attended the hearing. The applicant impressed the Tribunal as a devoted husband who conscientiously sought what was in his wife's best interests - respectful not only of the sanctity or inviolability of her life but also of her dignity; respectful too of her wishes as he believed them to be. It was clear that he had approached the Tribunal after much deliberation and discussion with his family. There was no real if any dissent within the family about what was the right course to follow.

Ultimately the Tribunal's decision must be a decision about the law. This is not to say, however, that ethical and moral considerations should or can be ignored, any more than they were in Bland.

The Tribunal considers that the regime which includes artificial nutrition and hydration is "medical treatment" which may lawfully be refused by an agent or guardian appointed for an incompetent patient, subject to the safeguards which exist in the Medical Treatment Act 1988 and the Guardianship and Administration Act 1986 (see section 61 as to the reassessment of guardianship orders). Those safeguards include that a refusal of treatment certificate can be made only in relation to the patient's current condition and must be signed by an agent or guardian and witnessed by a medical practitioner and another person (neither of whom witnessed the enduring power of attorney (medical treatment), if there is one), and, further, that the medical practitioner must certify the patient's current condition and the fact that he or she is not competent. The prescribed form contains the following note number 4:

"A medical practitioner who has doubts about the circumstances of the issue of this certificate, whether the medical practitioner must refuse to verify it (sic), the competency of the patient or the competency, good faith or motives of the agent or guardian in giving a direction about medical treatment under this certificate is advised to request the Victorian Civil and Administrative Tribunal to review the case."

The wording of this note is clumsy and Parliament may consider revising it, but it serves at least to put medical practitioners on notice that they should apply to the Tribunal if they have any concerns about a refusal of treatment certificate or the related circumstances.

Otherwise, it is for the medical profession to consider whether guidelines similar to the British Medical Association Guidelines should be developed. There would seem to be merit in doing so.

Where the patient has not appointed an agent but a person applies to the Tribunal for a guardianship order to enable a guardian to refuse medical treatment, the Tribunal will require clear evidence that the patient has a disability, lacks the capacity to make reasonable judgments and needs a guardian. The Tribunal may consider that the appointment of the Public Advocate, being an independent guardian, will be the preferable course. The Tribunal will not make a guardianship order unless satisfied that it would be in the best interests of the proposed represented person to do so. The Tribunal's deliberations would include consideration whether the circumstances were such that a guardian could refuse medical treatment - that is the circumstances referred to in section 5B(2) of the Medical Treatment Act 1988. Any order would have to make it clear that the guardian would have the power to make decisions in relation to medical treatment and so be the "appropriate order" contemplated by section 5A(1)(b).

In the present case the Tribunal is satisfied that the appointment of a guardian is in the best interests of the proposed represented person. Without a guardian, she is effectively compelled to continue to receive medical treatment which, if competent, she could lawfully have refused before the PEG was inserted or since that time.

By interpreting "medical treatment" as it has done, the Tribunal has preferred a construction that would promote the purpose or object underlying the Medical Treatment Act 1988.

A competent adult patient may make decisions about his or her medical treatment at any time. When competent a patient may appoint an agent under the Medical Treatment Act 1988. Often, but not always, it will be in the best interests of an incompetent patient who does not have an agent to have a guardian appointed by the Tribunal to make decisions for him or her. It will ordinarily be in the best interests of a patient to have a guardian if without a guardian the patient is unable to refuse treatment which would cause unreasonable distress or there are reasonable grounds for believing that the patient, if competent and after giving serious consideration to his or her health and well-being, would consider the treatment to be unwarranted.

Medical treatment may be considered unwarranted if it can provide no medical benefit to the patient, that is if it has no medical purpose, or if the treatment is reasonably seen to be disproportionate to the results that can be expected: as to this principle see Hansard, Legislative Assembly, 5 May 1988 at p. 2168.

It is a medical question whether a patient's condition has reached the stage at which he or she is "no longer likely to live because of the disease or illness [or other medical condition] which afflicts them" (Hansard, Legislative Assembly, 5 May 1988 at p. 2166) but also that medical treatment can provide no medical benefit to the patient and so has no medical purpose.

If the patient's condition has not reached that stage (whether because the patient is not dying, or because although the patient is dying medical treatment would have a medical purpose) it will be difficult to say that there are reasonable grounds for believing that the patient would consider the medical treatment to be unwarranted - unless, perhaps, when competent the patient had clearly expressed the wish not to receive medical treatment under any circumstances or, perhaps, where the treatment is reasonably seen to be disproportionate to the results that can be expected.

On the other hand, if a patient's condition has reached that stage it may be decided that palliative care should become the basis of treatment. It may be easier to say that there are reasonable grounds for believing that the patient would consider medical treatment to be unwarranted.

It is necessary for the Tribunal to say, finally, that although the application was amended to enable the guardian to seek advice under section 30 of the Guardianship and Administration Act 1980 the Tribunal has not found it necessary to advise the guardian or to approve or disapprove of any proposed act. If it became necessary, the guardian could seek the Tribunal's advice under that section.

1. The Public Advocate be appointed limited guardian of the represented person with powers and duties to make decisions concerning medical treatment.

2. This guardianship order be reassessed no later than 28 February 2004.

3. This order shall continue to have effect until further order of the Tribunal.