Gardner; Re BWV: resolved and unresolved issues at end of life

Abstract

The Medical Treatment Act 1988 (Vic) gives statutory recognition to a patient's (or their agent or guardian if incompetent) right to refuse medical treatment. The case of Gardner; Re BWV confirmed that medical treatment as defined under the Act included artificial nutrition and hydration and as such could be withdrawn, notwithstanding that this would result in the patient's death. This article analyses Gardner; Re BWV and argues that, by deliberately dealing narrowly with the issues at hand, both the Victorian Civil and Administrative Tribunal at first instance and the Victorian Supreme Court knowingly left BWV to die from dehydration over a period of weeks. By not addressing these issues, the tribunal, and more particularly the Supreme Court, lost an opportunity for a reform of the law, so urgently needed at end of life, which would have allowed for "mercy killing", thus sparing BWV and her family the lingering death she was given.