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Report No. 196

Case law in Australia

1. Q vs. Guardianship & Administrative Board & Pilgrim (1998) VS (CA) (17.9.98) decided by the Victorian Court of Appeal related to a decision of the Board to appoint a 'temporary guardian', which proceeded to override an 'advance directive' of the patient that blood products be not given to her "under any circumstances". Q was a devoted Jehovah's witness. The 'advance directive' was not in compliance with the provision of the Medical Treatment Act, 1988 (Victoria) (MTA) which created a statutory scheme for such document. She was pregnant and admitted in hospital and to avoid loss of blood, an emergency hysterectomy was performed but still there was loss of blood. The hospital could not proceed to give blood transfusion in view of the advance directive.

But her husband, Mr. Q moved the Board for appointment of a Public Guardian. Persons can be placed under 'limited guardianship' when they suffer disability and are not capable of reasonable judgment (sec 33 of the Guardianship & Administrative Board Act, 1986).

The Board was not shown the advance directive but was shown an earlier 'enduring power of attorney' which was not in accordance with the MTA. It was not told why Mrs. Q refused blood transfusion. It was shown a consent form executed in hospital but that was limited to administering blood during anaesthesia. They appointed a Public Advocate as temporary guardian and made orders delegating the temporary guardianship to Mr. Q. the Board said they were not auhorising blood transfusion but that they were authorizing Mr. Q to decide on that.

She was given blood transfusion and recovered and then sued the Board under section 7 of the Administrative Law Act, 1970 (Vic) to set aside the Board's decision. Beach J summarily dismissed it.

On appeal, Wunneke J told the Board had justification since the refusal contained in the consent form only related to the administering blood during anaesthesia. That the Board could ignore. The Board had only auhorised Mr. Q. The Court would be loath to create a rift between husband and wife.

The decision has been criticized, on the basis of comparative law in other countries. (see (1999) Melbourne University Law Review 6), by Cameron Stewart in his article 'Advanced Directives, the Right to Die and the Common Law: Recent problems with Blood Transfusions).



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