Supreme Court decision on the Medical Treatment Act
On 29 May 2003 the Victorian Supreme Court handed down a landmark judgement in a case brought by the Public Advocate. The judgement clarifies the relationship of medical treatment to palliative care. The judgement ensures that people with a disability are not treated as having lesser rights than competent persons who can refuse treatment.
The case involved a woman with severe disabilities, including a lack of cognitive capacity as a consequence of a progressive form of dementia. Before she became unwell she had told members of her family that should she ever become disabled she would not want medical treatment that would artificially and unnecessarily prolong her life.
The Court proceedings were initiated to obtain a definitive ruling on whether artificial nutrition and hydration delivered through a PEG tube (which is surgically inserted in to the stomach) is, under the Medical Treatment Act 1988, either:
- "medical treatment" which may be refused, or
- "palliative care" which may not be refused. The definition of "palliative care" in the Act includes "the reasonable provision of food and water".
The Court decided that PEG tube feeding was a "medical treatment" and so can be refused by a guardian or an agent authorised to make medical treatment decisions on behalf of a person unable to make their own decision.
A copy of the full judgement in the case which is cited as Gardner; re BWV may be obtained from - Full judgement in the case, cited as, Gardner; re BWV.