In Australia..........
Civil Division September 1998
Sharin Qumsieh v. The Guardianship & Administration Board & Lance Pilgrim
Coram: Winneke, P., Brooking & Ormiston, JJ.A.
Date of Judgment: 17 September 1998
Media Neutral Citation: [1998] VSCA 45
Administrative Law - Guardianship and administration - Order made by Board appointing temporary guardian in respect of health care decisions - Guardian directing blood transfusions to appellant contrary to her wishes and beliefs - Judge refusing to order review of Board's decision - Whether Board acted within jurisdiction.
Appeal dismissed. On 20 February 1998 the appellant, aged 20, was admitted to the Mercy Hospital for delivery of her first child. She was a Jehovah's Witness, and her religious beliefs precluded her from having blood transfusions. Following the satisfactory delivery of her child, her condition deteriorated as a result of internal haemorrhaging. She was transferred to the Western General Hospital where the most advanced medical facilities were available. By 24 February she was very anaemic through blood loss and under heavy sedation.
At the Mercy Hospital the appellant had signed a form called a "consent to operative treatment and administration of anaesthetic" in which she consented to examination under anaesthetic and the "administration of such anaesthetics as may be considered ... advisable with the exception of blood transfusion/blood products". The last four words were in handwriting. When her post-natal condition began to decline in the Mercy Hospital her husband produced to the medical staff a document entitled "Advance Medical Directive" signed by the appellant on 15 January 1998 directing that "no blood transfusions ... be given to me under any circumstances".
On the morning of 24 February 1998, when the appellant's condition had reached a very low ebb, her husband approached a solicitor and indicated that although he also was a Jehovah's Witness he wished his wife to be properly treated. It then appeared that the appellant had signed an Enduring Power of Attorney in favour of one, Tawfik Ibrahim, pursuant to the provisions of the Medical Treatment Act 1988. Efforts to contact Mr. Ibrahim were unsuccessful. An ex parte application was then made to the Guardianship and Administration Board presided over by the second respondent, as a matter of urgency as the appellant was unconscious and upon artificial ventilation. The Board was told that there was "a window of opportunity" of only about one hour before irreparable brain damage would occur. Produced to the Board was the Enduring Power of Attorney which clearly had not been executed in compliance with the Medical Treatment Act. The Board was not told why the appellant had refused a blood transfusion and the "Advance Medical Directive" was not produced. The husband then signed a form which stated:
"I instruct my solicitors ... to inform the solicitors for the hospital that I wish my wife to have blood and other treatment that is necessary."
The Board then made an order pursuant to s.33 of the Guardianship and Administration Act 1978 appointing the Public Advocate as the limited Guardian of the appellant. In making its order the Board stated that it was satisfied that the appellant did have a disability which it identified as "intellectual impairment" rendering her unable to make reasonable judgment with respect to her person or circumstances. It further stated that it was satisfied that there was an immediate need for a blood transfusion but that would be a decision left to the Public Advocate or delegated guardian approved by the Board. The Board explained the effect of its order to the husband and, in accordance with his wishes, he was appointed the delegated guardian of the Public Advocate. The order having been made, the instructions of the temporary guardian were transmitted to the Western General Hospital. Transfusions were given and the appellant responded to treatment. She was discharged about a week later.
On 7 May 1998 the appellant applied to Beach, J. for an order pursuant to s.3 of the Administrative Law Act 1978 to review the Board's decision and to have it declared invalid pursuant to s.7 of that Act. That application was refused, the judge stating that "the order was made to save her life and no court would contemplate exercising its discretion to grant a remedy". It was the refusal of Beach, J. to grant an order to review which was the subject of the appeal.
Winneke, P., with whom the other members of the Court agreed, was of the view that the judge had proceeded on the basis that the Board's decision could only be challenged on the limited material which had been before it on 24 February 1998. The Board had been approached as a matter of urgency upon material which indicated that the appellant was gravely ill, and without any clear indication that the orders sought from it were against the appellant's wishes on religious grounds. Moreover, the husband's application to be appointed the limited medical guardian provided added support for the Board's decision.
On appeal many grounds were relied upon contending that Beach, J. had erred in the exercise of his discretion under s.4 of the Act. These included claims that the application before the Board was made in bad faith, tainted by fraud, or that the Board's decision was otherwise unreasonable. In particular, it was submitted that if evidence of the appellant's apparent refusal to accept a blood transfusion had been before the Board then the jurisdiction under s.33 of the Act would not have been attracted. The President held that to accept that proposition would have made the Board's position and function virtually untenable. The judge was correct in only having regard to those matters which were before the Board.
His Honour was also not prepared to conclude that the judge had wrongly exercised his discretion under s.4 of the Act to refuse the application for review on the ground that no matter of substantial importance was involved. The number of respondents whom the appellant desired to be made parties to the review (some 13 doctors and nurses, her husband and his solicitor and the hospital's solicitor), the fact that the matter involved an order, now exhausted, made by a body whose powers and functions had changed and the fact that an order, if made, would bring the appellant into dispute with her husband were sufficient bases for the judge's decision.
W.P. Cathcart for the appellant.
No appearance for the respondents.
[Editor's note: The appellant has applied for special leave to appeal to the High Cout]
Ana