In a recent, widely publicised case, the Supreme Court was required to consider whether the force feeding of a terminally ill patient constituted medical treatment under the Medical Treatment Act 1988 (Vic.), and, therefore, could be refused by her legal guardian, the Public Advocate.

The matter of Gardner; Re BWV [2003] VSC 173 involved a 68 year old woman who had a rare and incurable form of dementia, known as Pick's disease. The woman (referred to as "BWV") lived in a nursing home, but was unable to communicate, move or take in any form of nourishment orally. BWV was being kept alive by artificial feeding through a stomach tube (known as a 'percutaneous endoscopic gastrostomy'; 'PEG').

In February 2003, the Victorian Civil and Administrative Appeal Tribunal (VCAT) appointed the Public Advocate to be BWV's limited legal guardian. The Public Advocate, the Plaintiff in these proceedings, sought declarations from the Court that the provision of nourishment through artificial feeding came within the meaning of "medical treatment" as opposed to "palliative care" under section 3 of the Medical Treatment Act. The distinction is important because, under the Act, a patient's legal guardian can, in certain circumstances, refuse medical treatment for the patient, but cannot refuse palliative care. Section 5B(2) outlines those circumstances in which medical treatment can be refused, namely

• if the medical treatment would cause a patient unreasonable distress or,
• where there exist reasonable grounds for believing that the patient, if competent and after giving serious consideration to his or her health or wellbeing, would consider the treatment unwarranted.

The Court examined the history of the legislation in this area, and the intention behind it, by examining parliamentary debates and its passage through the Houses of Parliament. It then closely examined section 3 of the Act to determine whether artificial feeding fell within the criteria outlined as constituting medical treatment, namely

• an operation, or
• the administration of a drug or other like substance, or
• any other medical procedure -

but does not include palliative care, which included;

• the provision of reasonable medical procedures for the relief of pain, suffering and discomfort, or
• the reasonable provision of food and water.

In addition to looking carefully at the legislation, the Court considered medical reports and submissions by interested parties including the patient's family, the Attorney-General (who intervened with the leave of the Court), the Catholic Church, and Right to Life Australia Inc.

The Court came to the conclusion that the artificial feeding in this case did constitute medical treatment under the Act as it involved medical procedures and decision making, as well as regular monitoring by health care providers. The Court further concluded that the medical treatment did not represent 'palliative care' as outlined in section 3 of the Act.

As a result of the decision, it became open to the Public Advocate, on behalf of BWV, to refuse the artificial feeding, thereby allowing BWV to die with dignity.

The preservation of a person's right to refuse medical treatment is clearly set out in the Medical Treatment Act. It is this legal right that the Court has upheld in this case. Sometimes debate on the wider moral issues of a case can overshadow the rudimentary legal issues involved - this appears to have occurred in this case.