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Blackwell Publishing, Ltd.

The experience of the Victorian Civil and Administrative Tribunal in relation to the Victorian Medical Treatment Act1

Stuart MorrisJustice of the Supreme Court of Victoria, President of Victorian Civil and Administrative Tribunal

An important jurisdiction of the Victorian and AdministrativeTribunal (‘VCAT’) is its responsibility for guardianship andadministration matters. Although most of these cases involvedisputes about the administration of financial or legal affairs,a small number of matters have arisen concerning Victoria’sMedical Treatment Act 1988. This Act sets out a regimewhereby a patient, or the agent or guardian of the patient, mayrefuse medical treatment, even if the consequence is that thepatient will die.

Although the Medical Treatment Act was first passed in 1988,it was not until recently that a case came before VCAT, andsubsequently before the Supreme Court of Victoria, requiringjudicial determination of the concepts used in the Act. Thecase, involving the artificial feeding of an elderly womanknown as BWV, required consideration of key concepts in theVictorian Act, such as ‘medical treatment’, ‘palliative care’ and‘the reasonable provision of food and water’.

This paper will explain the concepts used in the Victorian Actand the manner in which these concepts were interpreted inthe BWV case [1]. Consideration will also be given to othercases which have come before VCAT, which involve themaking of decisions that may have the consequence ofending life.

Guardianship List and the appointment of a guardianThe Victorian Civil and Administrative Tribunal is a consoli-dation of a dozen or so boards and tribunals, brought togetherin 1998 [2]. The Guardianship List of VCAT, which took overthe jurisdiction of the former Guardianship and Administra-tion Board, falls within the Human Rights Division of VCAT.The List deals primarily with disabled persons aged 18 yearsor over, in relation to the appointment of a guardian oradministrator.

Pursuant to section 5A of the Medical Treatment Act decisionsconcerning medical treatment of a person may be made where

the person has appointed an agent by way of an enduringpower of attorney (medical treatment). In the absence of aproperly appointed agent, the Guardianship and AdministrationAct allows for the appointment of a guardian to make suchdecisions. For the purpose of refusing medical treatment, theappointment of a guardian by VCAT is needed where therepresented person has failed to execute an enduring power ofattorney (medical treatment).

The appointment of a guardian for the purpose of refusingmedical treatment is approached with caution. Prior to theappointment of a guardian, VCAT must be satisfied that theperson to be represented:

• has a disability;• is unable, by reason of the disability, to make reasonable

judgements about matters relating to his or her person orcircumstances; and

• needs a guardian.

Furthermore, in deciding whom to appoint, VCAT must besatisfied that the proposed guardian:

• will act in the best interests of the person [section 28 of theGuardianship and Administration Act 1986 makes it acontinuing obligation for the guardian to act in the “bestinterests” of the represented person];

• does not have a conflict of interest; and• is a suitable person to act as guardian.

Where there are no suitable candidates who fulfil the require-ments for appointment, VCAT may appoint the Public Advocate,a statutory office.

Other safeguards apply once a guardian or agent is appointedand seeks to exercise their power to refuse medical treatment.The safeguards include, but are not limited to:

• executing a formal refusal of treatment certificate[Section 5B(1). The certificate must be countersigned.Essentially this means that the guardian or agent must havethe doctor’s acknowledgement to issue the certificate.];

• limiting the circumstances in which medical treatmentmay be refused [Section 5B(2). The medical treatmentmust cause unreasonable distress to the patient or theremust be reasonable grounds to believe that the patientwould consider that the treatment is unwarranted.];and

• cancelling a refusal of treatment certificate if the patient’scondition changes [Section 7(3). A refusal of treatmentcertificate ceases to apply to a person if the medical con-dition of the person has changed to such an extent that thecondition in relation to which the certificate was given isno longer current.].

1A paper originally given at the 28th International Congress on Law and Mental Health in Sydney, Australia, on 3 October 2003 and revised in November 2004.Correspondence to: Stuart Morris, Justice of the Supreme Court of Victoria, President of Victorian Civil and Administrative Tribunal. Email: robyn.weedon@justice.vic.gov.au

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These safeguards will be explored in further detail later, in thecontext of recent cases before VCAT.

Central to the appointment of a guardian by VCAT may bewhether a guardian is capable of making an effective decisionto refuse medical treatment once appointed. This issue was atthe heart of the decision in the case of BWV. As a matter ofinterpretation, if the procedure in question is not found to be‘medical treatment’, the Act does not permit its refusal [section4(2) of the Medical Treatment Act makes clear that the Act“does not apply to palliative care and does not affect any rightor duty which a registered medical practitioner or any otherperson has in relation to palliative care”.]. And therefore thereis no reason for VCAT making an appointment, as the guard-ian may not be empowered to make a lawful decision.

Gardner; re BWVIn Gardner; re BWV the family of an elderly woman, sufferingfrom a serious form of dementia and in a persistent vegetativestate (or similar), applied to VCAT for the appointment of afamily member as a guardian. The purpose of the appointmentwas to authorise the guardian to make a decision whether ornot to remove a feeding tube that was keeping the womanalive. At no time was there any prospect of recovery. The useof the feeding tube could best be described as life sustainingtreatment, as opposed to curative or therapeutic treatment.

Owing to the sensitivity of the subject matter and the publicpolicy concerns being generated, VCAT decided to appoint thePublic Advocate as guardian of BWV, with powers and dutiesto make decisions concerning medical treatment. However, thetribunal did not specifically advise the Public Advocate as tothe legality of removing the feeding tube.

This was the subject of the proceedings that subsequently camebefore the Supreme Court.

The enactment of the Medical Treatment Act in 1988 effec-tively enshrined in legislation the right to refuse medical treat-ment. In the 15 years since, only 76 certificates have beencompleted to dispense with life prolonging treatment [At thebeginning of 2003 only 76 forms had been lodged seeking therefusal of medical treatment. (Statistical evidence gatheredfrom the Office of the Public Advocate.)]. This highlights thereluctance of Victorians to exercise their medical right to refusetreatment, but it also explains why it has taken so long todefine the parameters, and determine the scope, of the Act inrelation to the refusal of medical treatment.

The decision in BWV clarified the existing law by interpretingthe following key terms:

• ‘medical treatment’;• ‘palliative care’; and• ‘the reasonable provision of food and water’.

A careful analysis of these terms is important because the Actdraws a distinction between what is ‘medical treatment’ and

what is ‘palliative care’. Whereas the refusal of medicaltreatment is permissible under the Act, a guardian is notallowed to refuse palliative care. Prior to the decision in BWVit was unclear as to where artificial feeding fit within thisdichotomy.

The significance of the distinction between ‘medical treatment’and ‘palliative care’ in the context of the Medical TreatmentAct 1988 revolves around sections 3, 4 and 5B of the Act.However, the operative effect of sections 4 and 5B aredetermined by the interpretation of terms as set out insection 3.

Section 3 of the Act provides:

‘medical treatment’ means the carrying out of –(a) an operation; or(b) the administration of a drug or other like substance;

or(c) any other medical procedure –

but does not include palliative care;

‘palliative care’ includes –(a) the provision of reasonable medical procedures for the

relief of pain, suffering and discomfort; or(b) the reasonable provision of food and water;

Prima facie medical treatmentIn BWV the administration of artificial nutrition and hydra-tion via a feeding tube was found to fall within at least one ofthe three subcategories in the definition of ‘medical treatment’.The provision of nutrients via a feeding tube was found to con-stitute both a medical procedure and the administration of asubstance like a drug.

The classification of a procedure as a ‘medical procedure’depends on whether the procedure relies upon commonknowledge or medical knowledge for its administration. InBWV it was said:

a medical procedure can generally be described as aprocedure that is based upon the science of the diagnosis,treatment or prevention of disease or injury, or of the reliefof pain, suffering and discomfort. It is not a simple matterto say what is and what is not a medical procedure. Someprocedures, such as blood letting, might once have beenregarded as medical procedures but may no longer be regardedas such. Other procedures, such as applying dressings towounds, might be medical procedures in some contexts, butnot in other contexts (such as applying a band-aid to agrazed knee). I think there is some force in Mr Burnside’ssubmission that whether or not a procedure is a medicalprocedure depends upon whether the medical knowledgeupon which it is based has become so widespread within thecommunity that it might now be regarded as commonknowledge, not medical knowledge [1].

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On this rationale the use of a feeding tube was held to be amedical procedure. This is because it involved the carefulselection of materials to be introduced into the body, closeconsideration of dosage rates, measures to prevent infectionand regular cleaning. In BWV the Court held, as a matter ofevidence, such considerations were not common knowledge.

The use of a feeding tube was also held to be within the mean-ing of ‘the administration of a drug or other like substance’.The type of substance used in a feeding tube was unlikeconventional forms of sustenance and was more readilyidentifiable as like a drug. It was formulated in concentrationsto provide complete and balanced nutrition and may haveadverse consequences if administered in the incorrect dosage.

Meaning of ‘Palliative Care’In order to understand what is meant by palliative care, it mustbe considered by reference to both its natural meaning andits extended meaning. The extended meaning turned on themeaning of the expression ‘the reasonable provision of foodand water’. The natural meaning of palliative care is understoodas a procedure to ensure relief, while at all times minimisingpain and suffering. There is a distinction between a proceduremeant to sustain life and a procedure to manage the dyingprocess, thereby eliminating discomfort. The provision ofsustenance by using a feeding tube was held in BWV to be not‘palliative care’ in the natural sense of the word, as it does notseek to alleviate pain and suffering.

Meaning of ‘the reasonable provision of food and water’Much of the uncertainty in Victoria in classifying the use of afeeding tube as medical treatment hinged on the statutorydefinition of palliative care, which includes the reasonableprovision of food and water.

In separating the concept of the provision of food and waterfrom medical treatment, it could be argued that parliamentwanted to ensure that dying patients were prevented frombeing denied nourishment. However, the decision in BWV drewa distinction between food and water that is orally consumedand artificial nutrition and hydration. The judgment said:

In my opinion, the intent of parliament in excluding theprovision of food and water from the concept of medicaltreatment was to ensure that a dying person would havefood and water available for oral consumption, if the personwished to consume such food or water. It can hardly havebeen the parliament’s intention that dying patients would beforced to consume food and water. Further, in my opinion,the extension of the concept to artificial nutrition andhydration would produce odd results, contrary to thepurpose of the legislation to allow patients, or agents orguardians on their behalf, to choose to refuse medicaltreatment and to die with dignity [1].

Accordingly, the statutory reference to ‘palliative care’ washeld not to extend to artificial nutrition and hydration, at least

in the circumstances of BWV. As a result, the use of an artificialfeeding tube was considered to be medical treatment, which anagent or guardian could refuse on behalf of the patient.

Cases recently before VCATSince the BWV case, further matters have come before VCATwhich pertain to the refusal of medical treatment. The facts ineach case are quite distinct, but highlight how the Guardianshipand Administration Act and the Medical Treatment Act operatein different situations. Further, the cases draw attention tohow the built-in safeguards, previously referred to in this paper,operate in determining when it is appropriate for a guardian torefuse medical treatment. The first two cases shall be referredto as Case 1 and Case 2. The third case, Public Advocate;re RCS [3], developed the law in relation to the appointmentof a guardian in circumstances where the guardian may chooseto refuse medical treatment, leading to the death of the repre-sented person.

Case 1 [4]The facts in Case 1 concern an elderly woman who was livingin an aged care facility after having suffered a massive stroke.She was in a persistent vegetative state with no prospect forrecovery. Similar to the facts in BWV, a feeding tube wasinserted to prolong her life, but after some consideration herrelatives were seeking discontinuation of the treatment on thegrounds that it is against the woman’s wishes.

What makes the case interesting is that the woman made awritten statement to her family in April 1988 expressing herclear intention to refuse medical treatment where there is noprospect for recovery. Despite her clear written instructions noformal medical power of attorney was ever given. Therefore,decisions of nonemergency medical care could not be made byher family. The relatives of the woman came before VCAT forthe reason of appointing a guardian and giving effect to herwishes as set out in the statement.

The existence of the statement, however, is not enough on itsown to permit the removal of the feeding tube. But supposinga guardian was appointed by VCAT the statement will help tojustify the guardian’s decision to refuse medical treatment.Pursuant to section 5(2), medical treatment may only be refusedin limited circumstances. One of those circumstances is wherethere are reasonable grounds for believing that the patient wouldconsider the treatment to be unwarranted. The existence of thestatement seeks to satisfy this evidentiary benchmark.

The matter was recently heard before the Deputy President ofVCAT who made it clear that the Supreme Court decision inBWV had put it beyond doubt that the use of a feeding tubewas medical treatment. Although the Public Advocate wasinvolved throughout the hearing as an independent investiga-tor, the woman’s daughter was ultimately appointed guardian.

Less than two months after the hearing the appointed guardiansigned a refusal of treatment certificate prohibiting the further

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use of the feeding tube. A month later the Office of the PublicAdvocate sent a notice to the tribunal indicating that the rep-resented person had died.

Case 2 [5]The second case concerns the assault of a man in his early thirties,resulting in severe brain haemorrhaging and consequentialloss of mental and physical capabilities. Despite his bleak pro-gnosis, the medical reports indicated there was some prospectof recovery, albeit attenuated by loss of speech, cognitive skillsand the ability to walk.

The point of contention arose in this case when the man’s rel-atives objected to allowing the doctors to perform a tracheos-tomy. The failure to carry out the procedure was likely to resultin death. The relatives were prepared to make this decision, on thebasis that on numerous occasions the man had made commentsexpressing his desire to refuse medical treatment if continua-tion were to result in anything less than a full recovery.

Owing to the complexities of the case, the Public Advocate wasappointed as guardian and an application was lodged seekingthe tribunal’s advice [Section 30 of the Guardianship andAdministration Act allows a guardian to apply for advice beforeexercising any power. This has the effect of protecting theguardian from liability where the tribunal has made an orderor given advice.]. Three days before the matter was to be heard,however, the patient exhibited signs of cognitive understand-ing and was able to communicate by squeezing a person’shand to give ‘yes’ and ‘no’ answers. When explained of hissituation and asked if he would like to continue treatment heanswered in the affirmative. As a result the application waswithdrawn.

If the application proceeded it is unlikely that the tribunalwould have given advice to refuse medical treatment. In anyevent, the man’s improved condition may have resulted in thecancellation of the refusal of treatment certificate if it had beengranted [Section 7(3) of the Medical Treatment Act states thata refusal of treatment certificate ceases to apply to a personif the medical condition of the person has changed to suchan extent that the condition in relation to the certificate isno longer current.]. Also, it is unlikely that medical consentwould have been given under section 5B(1) of the Act. Sincethe medical evidence as to the man’s prospects for recoverywas inconclusive, the hospital was reluctant to discontinuetreatment.

The Public Advocate subsequently made the decision to acceptmedical treatment and as a result the man is now on a path torecovery where the doctors are confident, that in time, he willbe able to walk. Further, the man has recovered to the pointthat he is now able to make decisions for himself as to the typeof treatment that he is to receive. As a result of his progress theprevious guardianship order authorising the Public Advocateto make decisions about medical treatment was reassessedpursuant to section 61A of the Guardianship and Administration

Act 1986 and was revoked by the tribunal. Nevertheless, thetribunal was satisfied that the represented person had adisability to the extent that a financial administrator was stillrequired to manage their estate.

Public Advocate; re RCSIn Public Advocate; re RCS the tribunal appointed the wifeand brother of RCS, jointly, to be a limited guardian of RCS,with powers and duties to make decisions concerning medicaltreatment. RCS suffered from a very severe disability as a resultof a traffic accident in 1999.

The tribunal made the following observations about theappointment of a guardian:

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

Second, the discretion is confined by section 22(3): it mustnot be exercised unless the tribunal is satisfied that the orderwould be in the best interests of the disabled person.

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

In BWV [6] the tribunal appointed the Public Advocate as alimited guardian of a woman suffering from severe dementia,with powers and duties to make decisions concerningmedical treatment. In the course of its reasons the tribunalcommented:

The Public Advocate submitted that a guardian should notbe appointed unless there is a decision required to be madeor there is a reasonable likelihood that a decision will berequired to be made in the foreseeable future. He submitted,further, that it follows that for a decision to be required tobe made there must be a decision which can be made. Thetribunal accepts those submissions.

Care must always be taken when one departs from the lan-guage used in the Act. One matter the tribunal must be satisfiedof is that the disabled person is in need of a guardian. In myopinion, this need could be established if there was a reasonablepossibility (not reasonable likelihood) that a decision, that aguardian is empowered to make, will be required to be madein the foreseeable future and there is no other person, such asa parent or spouse, who is empowered to make such decisions.But I do agree that it must be possible that there be a decision

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that could be made by a guardian; without this the tribunalcould not be satisfied that the disabled person is in need of aguardian.

Fourth, if a decision is made to appoint a guardian, section22(4) requires the appointment of a limited guardian unlessthis would be insufficient to meet the needs of the disabled per-son; and section 22(5) provides that where an order is madeappointing a limited guardian, the order must be one that is theleast restrictive of the disabled person’s freedom of decisionand action as is possible in the circumstances [3].

The tribunal then discussed the nature of the relevant test tobe applied in appointing a guardian who may refuse medicaltreatment on behalf of the represented person:

The present case is concerned with the appointment of aguardian. It is not directly concerned with the decisions theguardian may make once appointed. The two key issueswhich arise in deciding whether to appoint a guardian arewhether the disabled person is in need of a guardian andwhether it would be in his best interests to appoint aguardian. Taken together, the appropriate test is whetherthe circumstances of the disabled person require theappointment of a guardian to make decisions as to whethermedical treatment should be refused pursuant to section5B(2)(b) of the Medical Treatment Act. The test is notwhether, if a guardian was appointed, the guardian couldlawfully decide on behalf of the disabled person to refusemedical treatment, because the tribunal is satisfied that oneof the preconditions in section 5B(2)(b) of the MedicalTreatment Act has been established. [Section 55(4A) ofthe Guardianship and Administration Act 1986 makesprovision for the tribunal to give a direction to anadministrator. The is no identical provision in relation to aguardian. Section 30 of the Act permits the tribunal to giveadvice to a guardian.]

In applying the appropriate test the tribunal should lookat all the relevant circumstances. This will include theprobability [The tribunal used this word is used in itsstatistical sense of the relative frequency of an event, not inthe sense having a statistical probability greater than 0.5] ofa decision needing to be made by a guardian as to medicaltreatment. Another circumstance will be the condition, andlikely future condition, of the disabled person. A furtherfactor, which will usually be decisive, is the existence ofevidence that the disabled person would in no circumstancescountenance a refusal of medical treatment.

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

there are reasonable grounds for believing that the patient,if competent, and after giving serious consideration to his orher health and well-being, would consider that the medicaltreatment is unwarranted.

is a hypothetical test. In the case of a severely disabled patientit is, in one sense, an impossible test. In such a case the appli-cation of the test may often focus upon the existing and likelyfuture health and well-being of the patient. It may be enoughto establish that a reasonable person would, after giving seriousconsideration to his or her existing and likely future healthand well-being, consider that medical treatment, or particularmedical treatment, is unwarranted. This is because, in theabsence of particular evidence of the wishes of the patient inthe hypothetical circumstances, an inference could be drawnthat the patient would form the belief of a reasonable person.Another factor that might be relevant is general evidence aboutthe patient’s values and beliefs. This would enable an inferenceto be drawn about the likely wishes of a reasonable personhaving the patient’s values and beliefs, if in the hypotheticalcircumstances. But it is not necessary that there be specificevidence about the patient’s wishes to satisfy the test in section5B(2)(b) of the Medical Treatment Act [3].

In relation to the ‘best interests’ requirement, the tribunaladded:

It is true that if CFS and TPS are appointed as guardian theymay decide, in accordance with section 5B of the MedicalTreatment Act, to refuse medical treatment, with theconsequence that RCS dies. But it does not follow thatthe appointment would not be in RCS’ best interests. Thecontrary argument is predicated upon the proposition thatit is always in a person’s best interests to live on. I cannotaccept this. Death is an inevitable consequence of life on thisearth. When death stares one in the face, or when life isfutile, the person concerned, or the trusted agent or guardianof that person, may conclude that it is in the best interests ofthe person to refuse medical treatment and to allow theperson to pass away [3].

The RCS decision is consistent with the decision of the Courtof Appeal of the Supreme Court of Victoria in Qumsieh v TheGuardianship and Administration Board [7], decided in 1998.In that case Winneke P commented that the jurisdiction of theBoard to appoint a guardian to permit a blood transfusion isnot to be denied because the protected person has previouslymade a decision that he or she did not want a blood transfusionin different circumstances. He added:

. . . it must be remembered that the purpose of the Board’sorder was only to appoint the appellant’s husband as theapproved delegate of the Public Advocate who could thenmake whatever decisions were required to be made inrespect of the health care of the appellant. The Board wasnot itself directing those decisions [7].

ConclusionIn light of the decision in BWV there is greater certainty asto the type of treatment that may be refused pursuant tothe Medical Treatment Act. In the State of Victoria, at least,such issues are now much clearer. The cases that have

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since come before VCAT have to do with the properappointment of a guardian and the safeguards in place toprevent the refusal of treatment where the circumstances areinappropriate.

When the legal system is relied upon to make decisions, whichmay have the impact of ending life, it is imperative that thelegal system functions cautiously. In Victoria not only does thisrequire the proper construction and interpretation of thegoverning legislation, it requires the discerning oversight ofVCAT and members of the Guardianship List. This is necessaryin appointing guardians who will seek to carry out the best

interests of the represented person, even where that person’sbest interest is to be allowed to die with dignity.

References1 Gardner; re BWV [2003] 7 VR 487.2 Morris S. The Emergence of Administrative Tribunals in Victoria. 41 AIAL

Forum 16, (April 2004).3 Public Advocate; re RCS [2004] VCAT 1880.4 VCAT proceeding no: G39394/2003.5 VCAT proceeding no: G39024/2003.6 BVW [2003] VCAT 121.7 Qumsieh v The Guardianship and Administration Board [1998] VSCA 45.

On 11 February 2000, the High Court of Australia refused special leaveto appeal against the Court of Appeal decision.