Medical Treatment Act Case Law Report: Gardner; re BWV [2003] VSC 173

This report provides an in-depth analysis of the case Gardner; re BWV [2003] VSC 173, which was resolved under the Victorian Supreme Court, Australia, concerning the Medical Treatment Act, 1988 (Vic). The case involved a terminally ill patient, BWV, suffering from dementia and receiving artificial nutrition and hydration. The central issue was whether artificial feeding and hydration constituted "medical treatment." The court ruled that withdrawing artificial nutrition and hydration was permissible, aligning with international ethical, medical, and legal opinions. The report details the procedural history, facts, issues, and reasoning behind the judgment, emphasizing the rights of patients, especially those who are incompetent, and the role of guardians and physicians in making end-of-life decisions. The decision clarified that the Medical Treatment Act does not mandate artificial sustenance when it is not in the patient's best interest and is not considered palliative care. The report concludes by highlighting the importance of legislation in the legal framework and its significance in such complex medical and ethical scenarios.

LEGISLATION

Contents
INTRODUCTION...........................................................................................................................1
TASK...............................................................................................................................................1
Citation:.......................................................................................................................................1
Jurisdiction:..................................................................................................................................1
Procedural History:......................................................................................................................1
Facts:............................................................................................................................................1
Issues:..........................................................................................................................................2
Reasoning:...................................................................................................................................2
CONCLUSIONS.............................................................................................................................3
REFERENCES................................................................................................................................4

INTRODUCTION
In this modern era, laws and legislations are framed with a view point to enable effective and
legible working of a country. In this light, it can also be said that government is authorised to
frame legislations. In this regard, this report will be discussing in regard to case law of Gardner;
re BWV [2003] VSC 173 (29 May 2003), which is based in accordance with the legislation of
Medical Treatment Act, 1988(Vic) (Foster, Herring and Doron, 2014.). Also, in this report,
reasoning of judgement in connection with given case scenario, will be elaborated.
TASK
Citation:
Gardner; re BWV [2003] VSC 173 (29 May 2003).
Jurisdiction:
This case has been resolved under the Victorian Supreme Court, Australia.
Single judge: Morris. J
Procedural History:
This case was based on act of Medical Treatment Act, 1988.
First instance -Victorian Civil and Administrative Tribunal (“The Tribunal”)
Present matter - Supreme Court of Australia.
Facts:
With reference to the given case of BWV, who is terminally ill patient suffering from a
progressive form of disease namely dementia, due to which she suffered from complete lack of
cognitive capacity. Also, he receives nutrition and hydration through a percutaneous endoscopic
gastrostomy (“PEG”). It can be assessed as a process which enable to keep her alive. Although
there was not any panorama, which would be able to improve her condition in terms of health.
In this light, it can be said that Public Advocate of Victoria which was also known as Plaintiff,
was appointed in 2003 by the tribunal who act as a limited guardian of BWV. Through this
appointment, it can also be said that he became responsible for all pronouncements and
judgements associated with her medical treatment and cure (Hayek, 2012). In addition to this, it
can be considered that application in written format was made through the way of originating
motion by an act of Public advocate, who pursued clarifications from judicial court. It can also
1

be noted that the cited declarations were in accordance with norms and regulations of artificial
feeding and hydration, that falls within an ambit of “Medical treatment” under Medical
Treatment Act, 1988.
It was held by court that any kin\d of artificial nutrition as well as hydration is not
considered as a part of Palliative care. Also, this can also be set out as a process which helps to
sustain through life.
Issues:
The main issue of this case was hat BWV was suffering from major disease. In this light,
it can also be held that she received hydration and nutrition through a process which only kept
her alive.
Reasoning:
The judges of Victorian Supreme court have held that artificial nutrition and hydration that has
been rendered with a way of Percutaneous gastrostomy tube to a woman in a persistent
vegetative situation can be withdrawn (Mason, Laurie and Smith, 2013). Also, judge has ruled
their decision in accordance with the provisions of international aspects of ethical, medical and
legal opinion, that any kind of hydration and artificial nutrition, which cannot be treated as a
palliative care. Along with this, it can also be said that it is a procedure by which any person can
sustain her life. It is not there for managing procedure of dying. The judge has framed the
decision in view with international substantial body of medical, ethical and legal opinion.
In addition to this, it can be held that the laws in accordance to which decisions that has been
framed with case, does not apply a rigid obligation to administer artificial hydration and nutrition
to people who lead to die without any care of clinical condition. In addition to this, this case also
deliberates with the rights of patients (McGovern, 2010). Long with this, if they are not
competent they are not validly appointment to the agents or guardians, who refuses medical
treatment.
In addition to this, it can also be held that in case of situation when an incompetent
patient has refused to execute a binding advance directive, in which no guardian and agent has
been appointed by judges, then in that case, the physicians with consultation with their families
may decide to extract medical treatment, which includes artificial nutrition and hydration as well.
It can be included on the basis that process of treatment is also not appropriate as well as it is not
in the best interests of patient.
2

In this light, it can also be said that, the case of Gardner; re BWV [2003] VSC 173 (29
May 2003) has been decided in the perspective of Medical Treatment Act, 1988, which depicts
an authorisation that it permits an agent or patient to not accept any medical treatment on the
behalf of a person, who is not competent (Tan and Glantz, 2012. ). However, it does not include
palliative care. Also, tis act signifies that treatment and cure of a person in medical terms cannot
be decided with help of the guardian and agent that was been appointed.
Also, in this light, the court has also used the extrinsic materials which has been accepted
as an expert advice. These materials are those parts which dos not form any part of Act, which
may assist in interpretation of that particular act. These can be explained as explanatory
memoranda, report aroused from law commissions.
CONCLUSIONS
From, the above mentioned report, it can be held that legislations form an important part of
legal system of country. In this light, legislation can be recognised as a significant pat. Also, the
case of Gardner; re BWV [2003] VSC 173 (29 May 2003) has been defined in this report. along
with this, it can also be stated that this case was decided in accordance with the provisions of
Medical Treatment Act, 1988.
3

REFERENCES
Books and Journal
Foster, C., Herring, J. and Doron, I. eds., 2014.The law and ethics of dementia. Bloomsbury
Publishing.
Hayek, F.A., 2012.Law, legislation and liberty: a new statement of the liberal principles of
justice and political economy. Routledge.
Mason, K., Laurie, G. and Smith, A.M., 2013.Mason and McCall Smith's law and medical
ethics. Oxford University Press.
McGovern, K., 2010. Catholic Teaching about Tube Feeding.Chisholm Health Ethics
Bulletin.16(2). p.8.
Tan, C.E. and Glantz, S.A., 2012. Association between smoke-free legislation and
hospitalizations for cardiac, cerebrovascular, and respiratory
diseases.Circulation.126(18). pp.2177-2183.
Thygesen, L.C and et.al., 2011. Introduction to Danish (nationwide) registers on health and
social issues: structure, access, legislation, and archiving.
4