I appoint CFS and TPS, jointly, to be a limited guardian of RCS with powers and duties to make decisions concerning medical treatment.

Mr Phil Grano, solicitor, assisted by the Public Advocate (Mr Julian Gardner) and Mr Brendan Hoysted

1 On 24 February 2003 CFS applied to the tribunal, pursuant to section 19 of the Guardianship and Administration Act 1986, to be the guardian of her husband, RCS. RCS was born on 5 January 1959. He suffers from a very severe disability as a result of a traffic accident in 1999. RCS and CFS married in 1995, although they lived together for a number of years before that time. They have two children 7 and 6 years of age.

2 On 24 June 2004 Senior Member Steele dismissed the application for the appointment of a guardian. Essentially she was not satisfied that there was a need to appoint a guardian. This decision was based upon evidence that, if CFS was appointed as the guardian, she would make a decision on behalf of her husband refusing medical treatment, in the form of treatment with antibiotics, in the event that RCS developed a chest infection. Senior Member Steele took the view that such a refusal would not be open pursuant to section 5B of the Medical Treatment Act 1988 and, consequently, the need to appoint a guardian had not been established.

3 Section 60A of the Guardianship and Administration Act provides that if the tribunal makes an order in respect of an application under the Act, such as an order dismissing an application to appoint a guardian, a party, or a person entitled to notice of the application, may apply to the tribunal for a rehearing of the application. The Public Advocate, who is entitled to notice, has made such an application. In making this application the Public Advocate is supported by CFS and TPS, the brother of RCS.

4 Section 60C of the Guardianship and Administration Act provides that on an application under section 60A the tribunal must rehear the matter and, for that purpose, has all the functions and powers that the tribunal had with respect to the matter at first instance. Thus the rehearing is a rehearing "on the merits". By reason of clause 31 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 the rehearing in this case must be by the tribunal constituted by a presidential member.

5 Section 22 of the Guardianship and Administration Act 1986 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 judgements 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.

6 A decision to appoint a guardian involves a number of components. I make the following general observations.

7 First, the existence of the matters in paragraphs (a), (b) and (c) of section 22(1) of the Guardianship and Administration Act are preconditions for the appointment of a guardian; but such an appointment is still discretionary.

8 Second, the discretion is confined by section 22(3): it must not be exercised unless the tribunal is satisfied that the order would be in the best interests of the disabled person.

9 Third, the question of need has a number of dimensions. The matters set out in section 22(2) of the Guardianship and Administration Act must be considered. Consideration should also be given to whether formal provisions already in place, such as those in Part 4A of the Act, are sufficient to cover the circumstances. Consideration should also be given to whether existing informal provisions, such as understandings between family members and service providers, are sufficient to cover the circumstances.

10 In BWV[1] the tribunal appointed the Public Advocate as a limited guardian of a woman suffering from severe dementia, with powers and duties to make decisions concerning medical treatment. In the course of its reasons the tribunal commented:

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.

Care must always be taken when one departs from the language used in the Act. One matter the tribunal must be satisfied of is that the disabled person is in need of a guardian. In my opinion, this need could be established if there was a reasonable possibility (not reasonable likelihood) that a decision, that a guardian is empowered to make, will be required to be made in the foreseeable future and there is no other person, such as a parent or spouse, who is empowered to make such decisions. But I do agree that it must be possible that there be a decision that could be made by a guardian; without this the tribunal could not be satisfied that the disabled person is in need of a guardian.

11 Fourth, if a decision is made to appoint a guardian, section 22(4) requires the appointment of a limited guardian unless this would be insufficient to meet the needs of the disabled person; and section 22(5) provides that where an order is made appointing a limited guardian, the order must be one that is the least restrictive of the disabled person's freedom of decision and action as is possible in the circumstances.

12 In the present case the issue turns on whether the disabled person is in need of a guardian with the power to make decisions about medical treatment, particularly the refusal of medical treatment. This requires consideration of the provisions of the Medical Treatment Act 1988.

13 A decision by an agent or guardian to refuse medical treatment pursuant to the Medical Treatment Act can only be made in limited circumstances, defined by section 5B of that Act. This section provides:

5B Refusal of treatment certificate by agent or guardian

(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.

14 In BWV the tribunal accepted evidence 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 affected her. The tribunal also said in that case:

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.

In her decision Senior Member Steele disagreed with this quoted paragraph and said that she could not attribute such a meaning to the words of the statute. She added:

Section 5B(2)(b) requires an imagined or imputed "serious consideration" by the patient. Had Parliament intended an easier test in situations where there is no prospect of recovery, it could have said so in the legislation. It did not. In my view, the meaning of section 5B(2)(b) can not be turned around to imply that unless a person expresses a positive wish to have their life prolonged whatever the circumstance then they could be taken to consider that medical treatment is unwarranted if there is no prospect for recovery or improvement. To apply that interpretation would be to turn a requirement for an (implied) view into a presumption that the view exists if not positively refuted.

15 I agree with Senior Member Steele that section 5B(2)(b) requires an imagined or imputed "serious consideration" by the patient. I also agree that where there is no evidence as to the wishes of the patient, when competent, about what should happen in future circumstances if the patient was disabled and incompetent, this cannot be regarded as a positive presumption that the patient would wish to refuse medical treatment in such circumstances. But the tribunal in BWV did not say this. Rather it said that without such evidence it would be open to say that the patient would consider medical treatment 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. I agree with this proposition articulated in the BWV decision.

16 The present case is concerned with the appointment of a guardian. It is not directly concerned with the decisions the guardian may make once appointed. The two key issues which arise in deciding whether to appoint a guardian are whether the disabled person is in need of a guardian and whether it would be in his best interests to appoint a guardian. Taken together, the appropriate test is whether the circumstances of the disabled person require the appointment of a guardian to make decisions as to whether medical treatment should be refused pursuant to section 5B(2)(b) of the Medical Treatment Act. The test is not whether, if a guardian was appointed, the guardian could lawfully decide on behalf of the disabled person to refuse medical treatment, because the tribunal is satisfied that one of the preconditions in section 5B(2)(b) of the Medical Treatment Act has been established.[2]

17 In applying the appropriate test the tribunal should look at all the relevant circumstances. This will include the probability[3] of a decision needing to be made by a guardian as to medical treatment. Another circumstance will be the condition, and likely future condition, of the disabled person. A further factor, which will usually be decisive, is the existence of evidence that the disabled person would in no circumstances countenance a refusal of medical treatment.

18 It needs to be stressed that the test in section 5B(2)(b) of the Medical Treatment Act, namely that

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

is a hypothetical test. In the case of a severely disabled patient it is, in one sense, an impossible test. In such a case the application of the test may often focus upon the existing and likely future health and well-being of the patient. It may be enough to establish that a reasonable person would, after giving serious consideration to his or her existing and likely future health and well-being, consider that medical treatment, or particular medical treatment, is unwarranted. This is because, in the absence of particular evidence of the wishes of the patient in the hypothetical circumstances, an inference could be drawn that the patient would form the belief of a reasonable person. Another factor that might be relevant is general evidence about the patient's values and beliefs. This would enable an inference to be drawn about the likely wishes of a reasonable person having the patient's values and beliefs, if in the hypothetical circumstances. But it is not necessary that there be specific evidence about the patient's wishes to satisfy the test in section 5B(2)(b) of the Medical Treatment Act.

19 As I noted in the Supreme Court decision Gardner; re BWV[4] there are a number of safeguards against the abuse of the power of an agent or guardian to refuse medical treatment to a represented person. The existence of these safeguards means that the provisions of the Guardianship and Administration Act and the Medical Treatment Act can be interpreted faithfully, according to their terms; it is not necessary to read down their provisions to protect a disabled person who is represented by a guardian.

20 I am satisfied that RCS is a person with a disability. Section 3 of the Act defines the word "disability" in relation to a person to mean "intellectual impairment, mental disorder, brain injury, physical disability or dementia". Obviously RCS suffers from a disability, indeed a very severe disability. RCS suffers total quadriplegia, is unable to communicate and suffers other disabilities. He lives in a facility which provides full residential care. The medical evidence is that RCS also has substantial cognitive impairment, dysphagia and double incontinence. Although he might not be insensate, RCS does not appear to be aware of his environment. Hydration and nutrition is artificially provided to RCS via a PEG tube. There is no prospect that RCS' condition will improve.

21 I am also satisfied that RCS is unable, by reason of his disability, to make reasonable judgments in respect of all matters relating to his person or circumstances. This conclusion is so obvious as to require no further elaboration.

22 I am also satisfied that RCS is in need of a guardian.

23 CFS and SRS (another brother of RCS) have already been appointed the administrators of RCS and have responsibility for his financial affairs. Under section Part 4A of the Guardianship and Administration Act there exists a general regime which enables CFS to make decisions about the medical treatment of RCS; but this does not extend to a decision to refuse the administration of a pharmaceutical drug.[5] Satisfactory informal arrangements exist in relation to such matters as where RCS resides. Hence the principal consequence of the appointment of a guardian will be to enable a person to make decisions, on RCS' behalf, in relation to the refusal of medical treatment. Of course, a decision to refuse medical treatment could only be made if it was in accordance with the provisions of the Medical Treatment Act 1988.

24 I turn to the matters in section 22(2) of the Act. RCS does not have any effective freedom of decision or action; hence his needs cannot be met by any order other than an order for a guardian. The appointment of CFS and TPS, jointly, as a guardian takes account of the wishes of the nearest relatives, and other family members, of the proposed represented person. Indeed, the appointment of these persons as a joint guardian gives effect to these wishes. Such an appointment also takes account of the desirability of preserving existing family relationships. Once again, all relevant family members support the appointment of a guardian.

25 CFS has given evidence that, prior to RCS' accident, he had generally indicated that if he was in a position such that he is now in he would not want to be kept alive by the application of medical science. Understandably, the details of such discussions are vague. However I have no hesitation in finding that such general discussions did take place and that RCS did make statements to that general effect. This finding is supported by evidence from RCS' brother, SRS; and also from his mother, JCS.

26 But even if such discussions had not taken place, I am satisfied that the circumstances RCS now finds himself in are such that his guardian could reasonably conclude that if RCS was competent, and after giving serious consideration to his health and well-being, he would consider that certain medical treatment was unwarranted. I reach this conclusion on the basis of the very severe nature of his disability and the lack of any prospect that his condition will improve. I infer that a reasonable person in his current position could conclude that certain medical treatment should be refused. When I take into account the evidence given by CFS about RCS' statements and values, this inference is reinforced.

27 I am satisfied that the appointment of CFS and TPS, jointly, as the guardian of RCS would be in the best interests of RCS. The severe disabilities suffered by RCS have robbed him of the ability to make any decisions about his life. Yet decisions must be made. For, as pointed out by Hoffman LJ in Airedale NHS Trust v Bland[6] "we cannot disclaim this choice because to go on is as much a choice as to stop".

28 It is true that if CFS and TPS are appointed as guardian they may decide, in accordance with section 5B of the Medical Treatment Act, to refuse medical treatment, with the consequence that RCS dies. But it does not follow that the appointment would not be in RCS' best interests. The contrary argument is predicated upon the proposition that it is always in a person's best interests to live on. I cannot accept this. Death is an inevitable consequence of life on this earth. When death stares one in the face, or when life is futile, the person concerned, or the trusted agent or guardian of that person, may conclude that it is in the best interests of the person to refuse medical treatment and to allow the person to pass away.

29 I have decided to accept the submission of the Public Advocate and appoint CFS and TPS, jointly, to be the guardian. I was inclined to appoint CFS as the sole guardian, as she is the spouse of RCS. There is evidence that CFS will receive a financial benefit if RCS dies. I accept, without reservation, that this prospect will not play a role in any decision she makes about the medical treatment of RCS. But to protect her from criticism, even though on the evidence it would be unjustified criticism, I have decided to appoint her jointly with TPS.

30 I accept the submission of the Public Advocate that, by reason of sections 22(4) and (5) of the Guardianship and Administration Act I should appoint CFS and TPS, jointly, not as plenary guardians, but as limited guardians for the purpose of exercising powers and duties to make decisions concerning medical treatment.

[1] [2003] VCAT 121.

[2] Section 55(4A) of the Guardianship and Administration Act 1986 makes provision for the tribunal to give a direction to an administrator. The is no identical provision in relation to a guardian. Section 30 of the Act permits the tribunal to give advice to a guardian.

[3] This word is used in its statistical sense of the relative frequency of an event, not in the sense having a statistical probability greater than 0.5.

[4] [2003] VSC 173, at [88]. These safeguards include sections 30 and 60 of the Guardianship and Administration Act and sections 4, 5B, 5D, 5F and 7 of the Medical Treatment Act.

[5] See paragraph (g) of the definition of "medical or dental treatment" in section 3 of the Guardianship and Administration Act 1986.

[6] [1992] UKHL 5; [1993] AC 789, at 830.