WK v Public Guardian [2004] NSWSC 1061 | Case summary

REASONS FOR DECISION Introduction 1 Mr X is a 73 year old man who has been a patient at Prince of Wales Hospital since 10 October 2005. He is under the care of Professor Bruce Pussell. He has end stage kidney disease and is receiving haemodialysis. He had triple by-pass heart surgery in 1996 and was diagnosed with bowel cancer in 2000. According to medical staff at Prince of Wales Hospital, he also suffers from dementia. In late November 2005, Professor Pussell met with Mr X's sister in law and other relatives and friends to discuss Mr X's treatment and prognosis. After several meetings, a decision was made to stop the dialysis, however on 2 December 2005, a friend of Mr X's, who is the applicant in these proceedings, contacted Dr Pussell expressing his concern about that decision. A conference was convened that day and Professor Pussell decided not to stop the dialysis and instead to apply to the Guardianship Tribunal for the appointment of a guardian for Mr X. 2 On 23 December 2006, the Guardianship Tribunal appointed the Public Guardian to be Mr X's guardian and gave him functions including decisions about health care and consent to medical and dental treatment. On 14 February 2006, that decision was reviewed and the orders were renewed for 12 months. On 27 March 2006 the Public Guardian decided to consent to the palliative care management plan developed by the Renal Team and Palliative Care Team of Prince of Wales Hospital ("the decision"). Part of the management plan is to terminate the haemodialysis. If that happens, Mr X will die within a period of approximately two weeks. The decision was to take effect on 1 April 2006. 3 On 28 March, the friend lodged an application with this Tribunal for a review of the Public Guardian's decision and a stay of that decision. The stay application was listed for hearing the following day, 29 March 2006. The friend appeared without legal representation. Ms Phang appeared for the Public Guardian. These reasons relate to the stay application. 4 The first matter that arises for consideration is whether the stay application should be heard, despite the fact that no internal review has been requested or conducted. In view of the urgency of this matter and the promptness with which the friend has lodged the application, I am satisfied, pursuant to s 55(2) of the Administrative Decisions Tribunal Act 1997 (ADT Act) that it is necessary for the Tribunal to deal with the application in order to protect the interests of the friend and Mr X. Standing 5 The first issue Ms Phang raised was whether the friend has standing to bring this application. Under s 80A of the Guardianship Act 1987, an application to review a decision of the Public Guardian may be made by: (a) the person to whom the decision relates, or (b) the spouse of the person, or (c) the person who has the care of the person to whom the decision relates, or (d) any other person whose interests are, in the opinion of the ADT, adversely affected by the decision. 6 The only category which could possibly encompass the friend is paragraph (d). While the urgency of making a decision in these proceedings has prevented a thorough analysis of the question of standing, I am satisfied in this case that Mr X has standing. He has an interest in ensuring that Mr X's welfare is protected. While that interest may be no more than an emotional interest, it is a greater interest than that of an ordinary member of the public. I adopted a broad interpretation of "interests" because a narrow interpretation would defeat the purpose of the review provisions. The subject person is often not able to apply for a review of a decision themselves. Apparently Mr X never married and consequently there is no "spouse". Although Mr X's sister in law may come within the definition of "the person who has the care of the person to whom the decision relates" under s 3D of the Guardianship Act 1987, according to Mr X, she is elderly and speaks little English. If friends and relatives of the subject person are not regarded as persons whose interests are adversely affected by significant medical decisions about the subject person, then those decisions are unlikely to be reviewed. One purpose of the Guardianship Act is to enable such reviews to be conducted. Jurisdiction 7 I am also satisfied that the Tribunal has jurisdiction to hear this application. Section 80A of the Guardianship Act 1987 states that: (1) An application may be made to the ADT for a review of a decision of the Public Guardian that: (a) is made in connection with the exercise of the Public Guardian's functions under this Act as a guardian, and (b) is of a class of decision prescribed by the regulations for the purposes of this section. 8 All decisions made by the Public Guardian in connection with the exercise of his functions are prescribed for the purposes of section 80A of the Act. (See Cl 17 of the Guardianship Regulation 2005.) The friend disputed the Tribunal's jurisdiction by submitting that the Public Guardian had no power to make a decision which effectively amounts to euthanasia. He did not adduce any evidence or cite any authority in support of this proposition and I accept that the Tribunal has jurisdiction to review the decision. Legal principles 9 The principles to be applied to a stay application are set out in s 60 of the ADT Act. That provision states that: 60 Operation and implementation of decisions pending applications for review (1) Subject to this section, an application to the Tribunal for a review of a reviewable decision does not affect the operation of the decision under review or prevent the taking of action to implement that decision. (2) On the application of any party to proceedings for an application for a review of a reviewable decision, the Tribunal may make such orders staying or otherwise affecting the operation of the decision under review as it considers appropriate to secure the effectiveness of the determination of the application. (3) The Tribunal may make an order under this section only if it considers that it is desirable to do so after taking into account: (a) the interests of any persons who may be affected by the determination of the application, and (b) any submission made by or on behalf of the administrator who made the decision to which the application relates, and (c) the public interest. (4) While an order is in force under this section (including an order that has previously been varied on one or more occasions under this subsection), the Tribunal may, on application by a party to the proceedings, vary or revoke the order by another order. Relevant considerations 10 Secure the effectiveness of the hearing. Section 60(2) states that the Tribunal may make such orders as it considers appropriate "to secure the effectiveness of the determination of the application." The purpose of an order staying the Public Guardian's decision would be to "secure the effectiveness" of the hearing. Without such an order, Mr X will die within a short period of time and there would then be no point having a hearing. 11 Interests of any person likely to be affected. The first matter that the Tribunal must take into account when considering whether it is desirable to make a stay order is the interest of any persons who may be affected by the determination of the application. The interests of Mr X and his friends and relatives will be affected by the decision that the Tribunal makes in relation to the substantive application. Although I am not exercising a function under the Guardianship Act 1987 when determining whether or not to grant a stay, the principles set out in that Act are relevant to my determination. In particular, "the welfare and interests" of the subject person "should be given paramount consideration". In addition, his "views should be taken into consideration." 12 Interests of Mr X. Mr X is under the care of, Professor Pussell who is a senior staff specialist in kidney disease at Prince of Wales Hospital. Professor Pussell gave evidence by telephone. Two reports, one dated 15 December 2005 and the other dated 9 February 2006 were before the Tribunal. In those reports Professor Pussell said that he has been involved in Mr X's care for many years and that Mr X has been on haemodialysis therapy since November 2005. Professor Pussell's view was that further haemodialysis interventions would be futile because they would offer him no prospect of recovery either from a renal or cognitive point of view. He said he needs 24 hour one to one nursing care and his nursing progress notes repeatedly document his attempts to remove his dialysis lines while undergoing treatment. According to Professor Pussell, this places him at extreme risk of bleeding and cardiovascular collapse, which could be fatal. 13 However, when asked what the effect on Mr X would be of remaining on dialysis for a few weeks, pending a hearing of this matter, Professor Pussell said that the current treatment could be continued but that Mr X's quality of life would remain very poor. He said that it was possible that he could die from bleeding or cardiovascular collapse but that the likelihood of that happening was not high. On the basis of this evidence, I am satisfied that it is unlikely that Mr X will suffer any more than he is already suffering if the haemodialysis continues in the short term. I acknowledge that there is a risk that Mr X could die from bleeding or cardiovascular collapse if he is successful in removing his dialysis lines while undergoing treatment. But, on the basis of Professor Pussell's evidence and with vigilant nursing care, the likelihood of that happening is not high. On balance, taking into account all the evidence, I am satisfied that it would not be contrary to Mr X's welfare or interests to continue on dialysis for a few weeks. 14 Views of Mr X. The evidence before the Tribunal about his views was contained in medical reports and in the Public Guardian's Reasons for Decision which reflected meetings the Public Guardian had with Mr X on 12 January 2006 and 23 March 2006. In the Reasons for Decision, the Public Guardian summarised Mr X's views as follows: Mr X was unable to provide a clear view regarding his medical treatment, despite the assistance of an interpreter in the Greek language. He was generally able to respond to questions, although these had to be constantly repeated and the interpreter reported on several occasions that his answers were incomprehensible. Mr X was unable to initiate conversation. He indicated he understood he would die if haemodialysis were to cease, and when asked, stated he wanted it to continue ("yes"). However, he denied suffering from any other serious health conditions despite clear visible evidence (colostomy bag, surgical scars to the chest and leg, oxygen beside the bed); and it was evident he did not have an understanding of how his co-morbidities compromised the utility of haemodialysis. When the Public Guardian put it to him that the medical team considered ongoing haemodialysis to be futile, that he is in the process of dying, and that ongoing management should involve comfort measures only, his response indicated that he wanted to be kept comfortable during the dying process ("Who wouldn't want that?") 15 I am satisfied on the basis of this evidence that to the extent that Mr X is able to express a view, his view is that he wants the haemodialysis to continue. Submissions by the administrator 16 Ms Phang relied on several other medical reports besides those written by Professor Pussell. Three of those reports were obtained by the Public Guardian for the purpose of the Guardianship Tribunal hearing or to obtain a second opinion to that of Mr X's treating medical team. The report of Dr James Mackie, another senior staff specialist and renal physician at Prince of Wales Hospital, supports Professor Pussell's view. He said that patients in Mr X's state suffer unnecessarily by continuing dialysis. Ms Phang submitted that because of the unanimity of medical opinion and the fact that the friend had not provided any contrary medical opinion, the likelihood of the Tribunal setting aside the Public Guardian's decision was slight. She cited Isaac Messiha (by his tutor Maagdy Messiha) v South East Health [2004] NSWSC 1061 (11 November 2004) as authority for the proposition that the Tribunal "is in no better position to make a determination of future treatment than are those who are principally under the duty to make such a decision." While that observation may be correct, the Tribunal's role when hearing a stay application is to exercise its discretion in relation to that application, not to determine the correctness or otherwise of the administrator's decision. 17 Mr Phang also relied on the detailed reasons for decision provided by the Public Guardian and on the oral evidence provided to the decision maker, Mr Reynolds. While that evidence was useful, this is an application for a stay, not the hearing of the substantive application. Similarly, the friends cross-examination of Professor Pussell and Mr Reynolds is relevant to the substantive application. The transcript of the evidence of each of those witnesses will be relevant to that application. 18 Public interest. If friends or relatives disagree with a recommendation by medical practitioners in relation to the treatment of their friend or relative, it will generally be in the public interest for those friends or relatives to have the opportunity to challenge that decision. One proviso to that generalisation is that the interests, welfare and views of the subject person must be taken into account. Conclusion 19 Taking into account the interests and welfare of Mr X and his views as well as the submissions from Ms Phang and the public interest, I consider it desirable to stay the Public Guardian's decision. Without a stay in place, Mr X will die within two weeks. The opportunity for the friend to challenge the substantive decision will then be lost. It would not be contrary to Mr X's welfare or interests to continue on dialysis for a few weeks. His view, so far as it can be ascertained, is that he wants to continue on dialysis. Delaying the implementation of the decision for a short time so that its correctness can be examined is also in the public interest. Orders and Directions 20 The decision of the Public Guardian to consent to the palliative care management plan developed by the Renal Team and Palliative Care Team of Prince of Wales Hospital in relation to Mr X is stayed pending further order of this Tribunal. 21 I make the following directions: 1. Public Guardian to file and serve any further statements, documents or submissions on which it intends to rely by 4 April 2006. 2. The applicant to file and serve any further statements, documents or submissions on which he intends to rely by 7 April 2006. 3. Matter set down for hearing on 11 April 2006 at 10 am for 1/2 day. (Note: it will not be necessary to re-call Professor Pussell or Mr Reynolds as they have given evidence and been cross-examined on the substantive issues.)

WK v Public Guardian

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