Case example

In Messiha (by his tutor) v South East Health [2004] NSWSC 1061, a patient’s family sought a court order for the continuation of life-sustaining treatments. The patient had had a cardiac arrest and suffered severe brain damage as a result. He had a history of heart disease and severe lung disease. There was unanimous medical opinion that the best interests of the patient would be served by the managed withdrawal of treatment. However, the patient’s family disputed this, believing that treatment was not futile if it continued to support the patient’s life.

Howie J decided that the managed withdrawal of treatment was in the patient’s best interests. He was swayed by the unanimous medical opinion as to the patient’s prognosis, and believed that the treatment was burdensome and futile.

Case examples

WK v Public Guardian (No 2) [2006] NSWADT 121 concerned Mr X, a 73-year-old man with end-stage kidney disease, advanced heart disease, dementia and bowel cancer. Mr X was receiving haemodialysis. A decision was made by his treating physician, his sister-in-law and other relatives and friends to stop the dialysis. However, a friend of Mr X’s, WK, objected to the decision to withdraw treatment, and it was referred to the New South Wales Guardianship Tribunal, which appointed the Public Guardian as Mr X’s guardian. The Public Guardian, among other things, consented to the withdrawal of treatment, a not-for-resuscitation order and palliative care.

WK appealed the Public Guardian’s decision to the New South Wales Administrative Decisions Tribunal. The deputy president of that tribunal issued a stay on the decision to withdraw treatment, and ordered that further evidence be presented (WK v Public Guardian [2006] NSWADT 93). On the return of the application the tribunal decided that the decision to withdraw dialysis and to refuse ‘aggressive’ treatment was beyond the power of the Public Guardian.

This was primarily because Part V of the Guardianship Act, which gives the Guardianship Tribunal, appointed guardians, enduring guardians and persons responsible powers over treatment, limits those powers to giving consent to treatments that promote and maintain health and wellbeing. On the deputy president’s reading of the Act, a decision to withdraw treatment did not promote health and wellbeing. If this is the case, substitute decision-makers who draw power from the New South Wales Guardianship Act have no power to consent to the withdrawal of life-sustaining treatments.

It should be said that the authority of this decision is questionable.

In Re AG [2007] NSW GT 1 (5 February 2007), the Guardianship Tribunal reviewed the findings in the WK matter, and gave a decision that varies substantially from the findings of the Administrative Decisions Tribunal. The patient was a 56-year-old woman with mild intellectual disability. She lived alone in her own home, receiving support services on a daily basis from a specialist care provider. She had been diagnosed with a renal tumour with lymphadenopathy in the abdomen and pelvis. There was also the possibility that she had secondary brain tumours, and her prognosis was consequently very poor. She had a history of refusing medical treatment, and fear of needles. She refused to acknowledge the existence of the kidney tumour, although she accepted that she had cancer.

The Public Guardian, which had been managing AG’s care, was now faced with making a palliative care plan that included decisions to forego cardiopulmonary resuscitation and dialysis. The Public Guardian approached the Guardianship Tribunal for directions, given that the WK (No 2) decision seemed to indicate that it was not possible for the Public Guardian to consent to such a plan.

The tribunal decided that, generally, consent could be given or refused for medical treatment, which included palliative care. Palliative care, in turn, could include treatment limitations, such as the non-provision of treatment, as long as the care promoted and maintained health and wellbeing, as required by the Act. The tribunal stated that the weight of authority supported the notion that treatment limitation can promote and maintain a person’s health and wellbeing, if it prevents futile treatment and allows the person to die with comfort and dignity.

The tribunal also found that guardians with health care functions could be given the power to be involved in advance care planning, while recognising that advance care planning could be engaged in without appointing a guardian with a health care function.

Bringing these findings to AG’s situation, the tribunal felt that it was necessary for a specific order to be made to give the Public Guardian the power to consent to the proposed palliative care plan, and that this could only be done after further medical investigations were completed.

Following this case, it would appear that decisions to withhold or withdraw treatment may be made by substitute decision-makers under the Guardianship Act 1987 (NSW).

In Re RWG [2000] QGAAT 2, the wife of a 73-year-old man with an acquired brain injury made an application for a no-cardiopulmonary-resuscitation order and for the power to refuse antibiotics. The Queensland Guardianship and Administrative Tribunal agreed to the no-cardiopulmonary-resuscitation order, but would not consent to the refusal of antibiotics given that the patient was not suffering from an infection at the time of the hearing, and it would therefore be premature to examine the issue.

In Re MC [2003] QGAAT 13, permission was sought to withdraw artificial feeding from an 80-year-old woman in a persistent vegetative state. The Queensland Guardianship and Administrative Tribunal found that the treatment was of no benefit to her and should be ceased.

Re HG [2006] QGAAT 26 concerned a 58-year-old man with Wernicke’s encephalopathy and Korsakoff’s psychosis who had a brain stem stroke that left him in a ‘locked-in’ state. The Queensland Guardianship and Administrative Tribunal was asked to determine whether artificial feeding and hydration should be continued. The tribunal found that on the basis of medical evidence it would be inconsistent with good medical practice to continue artificial feeding and hydration, and it ordered that such treatments cease. A finding about good medical practice did not require the practice to have the unanimous support of all medical experts.