A judgment of the Victorian Supreme Court permitting the withdrawal of tube feeding, and so hastening the death of a 68 year old woman suffering from dementia, has important implications for a society in which there has been sustained pressure, over recent years, for legalised euthanasia.
Tube feeding of the lady (known only as BWV), commenced eight years ago, with her full agreement, and she has been tube fed continuously since that time. Due to the gradual deterioration of her condition, for the past three years, she has been in a nursing home.
The issue is complex, as the lady’s illness is degenerative, and as she does not appear to be conscious, she is incapable of expressing her own wishes.
The case was taken by the Public Advocate, a person appointed by a Victorian Government tribunal, with power to make decisions concerning her future medical treatment.
In a legal sense, the case turned on the question of whether the use of tube feeding of the lady constituted medical treatment or palliative care.
Under Victoria’s Medical Treatment Act, a guardian may refuse medical treatment but not palliative care.
Palliative care includes provision of reasonable medical procedures for the relief of pain, suffering and discomfort; and the reasonable provision of food and water which is not burdensome for the patient.
The case was complicated by the fact that the medical experts who gave evidence to the court were divided on whether the patient was dying, or whether she was suffering a degenerative brain disease but would eventually die from it or from some other condition.
The fact that the lady’s family had requested the appointment of the Public Advocate months ago, and it had been approved by the Victorian Civil and Administrative Tribunal in February, indicates that the lady is not dying, in the normal meaning of that term, although her condition is clearly deteriorating gradually. Evidence given in the case was that Mrs BWV could live for “months or years”, if the tube feeding was continued.
In light of the fact that tube feeding was not refused by the patient when she was conscious, it is clearly not burdensome to her now. However, the procedure had become burdensome to her family and the medical staff who were treating her.
The court’s judgment widens the grounds on which medical practitioners might refuse treatment to gravely ill patients, as the common practice of providing nutrition and hydration via a PEG tube has now been defined to be “medical treatment” and not palliative care.
It has further grave implications for medical staff who have issues of conscience with the withdrawal of hydration and nutrition in these circumstances, and Church-run hospitals, nursing homes and hospices.
Archbishop Denis Hart of Melbourne outlined the implications of this in an article published on May 14. He said the case had “major implications beyond the distressing events that have led her family to this point.
“It may set an important precedent for our court-made law here in Australia, as similar cases have overseas. That in turn may change the way we care for and relate to elderly, handicapped and unconscious people for years to come.”
The Archbishop emphasised that the Catholic Church rejected two extremes: first, the attitude of ‘feed people up no matter what’ and second, the attitude that ‘they’re better off dead, so why continue feeding’.
He added, “Good medical and nursing ethics have always insisted that we may never deliberately hasten death. We all know that that can be done by withholding basic needs, as easily as by giving them poison. We can kill by neglect.
“Compassion requires that we care, even when we can’t cure. Continuing to care for patients is a fundamental way of respecting the bonds of solidarity to which they are entitled. It says that even if they are at a very low ebb, not expected to get better, they still matter, and matter very much. It says that even if some other treatments are properly withheld, we will still treat them as one of us. Like everyone else, they are entitled to be fed and kept warm, clean and comfortable.
The Archbishop drew attention to the fact that in some other countries, law courts had failed to strike the balance between the extremes of inappropriate feeding of the dying and deliberate starvation.
“The Bland case in Britain, for instance – in which courts ordered the removal of an unconscious man’s feeding-tube – left the law so ‘confused’ and ‘misshapen’ (to quote the judges) that a major parliamentary inquiry had to be held.
“The case has been much criticised by legal academics and social commentators but it remains ‘on the books’. As a result many disabled and elderly find themselves without the ordinary protection of law and many health workers find their consciences violated. It is vital that our courts do not take the same path,” he said.
“It is clear that this is what the euthanasia lobby wants. They know – as every health professional knows – that law and medicine already allow the withdrawal of inappropriate forms of care. But euthanasia advocates have been looking for a test case with which to get our courts drastically to alter the laws protecting human life.
“At a time when reverence for human life is being corroded in some quarters and when pressures on health and aged care resources are considerable, there is a real risk that marginalised people – the poor, the very sick, the unconscious – will be neglected or abandoned. No society can permit that.
“There is also a risk that Church hospitals and nursing homes, and health professionals across the board, will find themselves being directed by guardians or tribunals to stop feeding patients and so hasten their deaths. This would be a major violation of many people’s consciences – a violation which no court should support,” he concluded.
Up to the present time, tube feeding of patients is routine in hospitals, and is not regarded as a form of a medical “treatment”, but rather, is the means of sustaining life in patients who temporarily or permanently cannot take food or water in the normal way.
This case could be used as a precedent for the removal of normal treatment of unconscious or dementia patients who have either a low “quality of life” or no prospect of recovery.
- Peter Westmore is President of the National Civic Council