FI v Public Guardian [2008] NSWADT 263

FI v Public Guardian [2008] NSWADT 263

A guardian invested with authority to perform health care functions on behalf of a protected person is not prevented by the Guardianship Act 1987 or the general law from making decisions involving withdrawal of life-sustaining treatment, provided the decisions are made consistently with the principles in the leading cases and with the protected person's best interests as the fundamental consideration. Because consultation and specialist assessment were preferable, the review application was remitted to the Public Guardian for reconsideration rather than determined by the Tribunal.

Jurisdiction
Australia
Judgment Date
16 September 2008
Procedural Posture
Application for Review of a Decision of the Public Guardian Under S 80 a of the Guardianship Act 1987 / Preliminary Question on Power to Make Provision to Withdraw Life Sustaining Treatment in Advance Care Plans; Application Remitted for Reconsideration
Outcome
Preliminary question answered in favour of the Public Guardian's power; application remitted to the Public Guardian for reconsideration of the decision made 11 February 2008.
Legal Topics
['advance Care Plans' 'palliative Care Plans' 'withdrawal of Life Sustaining Treatment' 'powers of the Public Guardian' 'health Care Functions Under Limited Guardianship Orders' 'best Interests of Protected Person']
['guardianship' 'administrative Law' 'health Law' 'medical Treatment and Consent'] ['advance Care Plans' 'palliative Care Plans' 'withdrawal of Life Sustaining Treatment' 'powers of the Public Guardian' 'health Care Functions Under Limited Guardianship Orders' 'best Interests of Protected Person']

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Procedural Posture

Application for Review of a Decision of the Public Guardian Under S 80 a of the Guardianship Act 1987 / Preliminary Question on Power to Make Provision to Withdraw Life Sustaining Treatment in Advance Care Plans; Application Remitted for Reconsideration

Legal Issues

  1. 1 ['Whether the Guardianship Act 1987 permits the Guardianship Tribunal to invest a guardian with authority to make advance care plans including provision for withdrawal of life-sustaining treatment.' 'Whether a guardian with health care functions under a limited guardianship order may make decisions involving withdrawal of life-sustaining treatment.' 'Whether Part 5 of the Guardianship Act 1987 prevents inclusion in an advance care plan or palliative care plan of an element providing for withdrawal of treatment.' 'Whether the application should be retained by the Tribunal or remitted to the Public Guardian for reconsideration.']

Ratio Decidendi

A guardian invested with authority to perform health care functions on behalf of a protected person is not prevented by the Guardianship Act 1987 or the general law from making decisions involving withdrawal of life-sustaining treatment, provided the decisions are made consistently with the principles in the leading cases and with the protected person's best interests as the fundamental consideration. Because consultation and specialist assessment were preferable, the review application was remitted to the Public Guardian for reconsideration rather than determined by the Tribunal.

Court Disposition

Preliminary question answered in favour of the Public Guardian's power; application remitted to the Public Guardian for reconsideration of the decision made 11 February 2008.

Orders

  • ['On the preliminary question, the answer is at para [53] of these reasons.' 'Pursuant to s 65 of the Administrative Decisions Tribunal Act 1997, the application is remitted to the Public Guardian for reconsideration of the decision made 11 February 2008.' 'The Public Guardian is to report back to the Tribunal in...