Citation
Gardner; re BWV [2003] VSC 173
Jurisdiction
Supreme Court of Victoria
Single Judge: Morris J
Procedural History
First instance – Victorian Civil and Administrative Tribunal (“the Tribunal”)
Present Case- Supreme Court of Victoria
Facts
BWV is critically ill and has a degenerating form of dementia which inhibits her cognitive functions. BWV obtains essential fluids and nutrition to keep her alive, through a percutaneous endoscopic gastrostomy (“PEG”). The medical witnesses who examined BWV, argue that the facilitation of the PEG has no likelihood of improving her condition.
The Public Advocate of Victoria was assigned by the Tribunal to serve as the BWV’s guardian, thereby, enabling the Advocate to make all the decisions …show more content…
The central piece of legislation which required interpretation by the Court was the Medical Treatment Act 1988 (ss 3, 4 and 5B). The Guardianship and Administration Act 1986 s 5 (b) was also referred to clarify guardianship authority relating to the Public Advocate’s provision of medical treatment.
b) Which approach to statutory interpretation was applied by the court? You must provide evidence to support your …show more content…
This Approach is based on ascertaining the purpose of the Act and the intent of Parliament through the referral to intrinsic and extrinsic sources.
Intrinsic Sources
The Court relied heavily upon the use of intrinsic sources to ‘promote the purpose or object underlying the Act’, and hence, assist in its decision. The Court referred to ‘Purposes of [the] Medical Treatment Act 1988 (Vic), which specified its purpose:
(a) 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
The Courts holding is aimed to reflect the purpose of the Act. The Court also clarified the definitions of ‘medical treatment’ and ‘palliative care’ under the Medical Treatment Act (1988):
“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”
Gardner; re BWV [2003] VSC 173
Jurisdiction
Supreme Court of Victoria
Single Judge: Morris J
Procedural History
First instance – Victorian Civil and Administrative Tribunal (“the Tribunal”)
Present Case- Supreme Court of Victoria
Facts
BWV is critically ill and has a degenerating form of dementia which inhibits her cognitive functions. BWV obtains essential fluids and nutrition to keep her alive, through a percutaneous endoscopic gastrostomy (“PEG”). The medical witnesses who examined BWV, argue that the facilitation of the PEG has no likelihood of improving her condition.
The Public Advocate of Victoria was assigned by the Tribunal to serve as the BWV’s guardian, thereby, enabling the Advocate to make all the decisions …show more content…
The central piece of legislation which required interpretation by the Court was the Medical Treatment Act 1988 (ss 3, 4 and 5B). The Guardianship and Administration Act 1986 s 5 (b) was also referred to clarify guardianship authority relating to the Public Advocate’s provision of medical treatment.
b) Which approach to statutory interpretation was applied by the court? You must provide evidence to support your …show more content…
This Approach is based on ascertaining the purpose of the Act and the intent of Parliament through the referral to intrinsic and extrinsic sources.
Intrinsic Sources
The Court relied heavily upon the use of intrinsic sources to ‘promote the purpose or object underlying the Act’, and hence, assist in its decision. The Court referred to ‘Purposes of [the] Medical Treatment Act 1988 (Vic), which specified its purpose:
(a) 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
The Courts holding is aimed to reflect the purpose of the Act. The Court also clarified the definitions of ‘medical treatment’ and ‘palliative care’ under the Medical Treatment Act (1988):
“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”