Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue

The hearing

1. On 2 October 2015, a separate representative was appointed for Miss UMG. Ms Emalene Gemmell participated in these proceedings in this role.
2. An interlocutory hearing was conducted on 16 October 2015. At that hearing, the Tribunal joined Miss UMG's aunt as a party to the proceedings, made directions for the applicant to provide a written report addressing relevant issues and provided a timetable according to which Miss UMG and her aunt could provide any evidence and/or submissions that they wished to rely on.
3. A further directions hearing was conducted on 6 November 2015. The parties were specifically directed to provide within a certain timeframe any further evidence and/or written submissions concerning Miss UMG's capability to give consent to the carrying out of the proposed special medical treatment as none of the participants, by that date, had addressed this issue in any detail.
4. The hearing was conducted in Regional NSW on 7 December 2015. Present at the hearing were Miss UMG, the applicant, Miss UMG's aunt and uncle, Ms X (Senior Social Worker at a Community Health Centre in Regional NSW), Ms W (Disability Advocate with Disability Advocacy NSW), Miss UMG's cousin, Ms BAW's father, and Ms BAW's mother. The parents of Ms BAW described Miss UMG as their "adopted grandchild".
5. The separate representative also participated in the hearing.
6. Dr Y, Supervising Clinical Psychologist with the psychology clinic and co-author of the written report mentioned previously dated 13 October 2015, participated in the hearing by telephone in order to address queries raised by the Tribunal in relation to the contents of the written report.
7. Upon the conclusion of the hearing in Regional NSW on 7 December 2015, the Tribunal reserved its decision.
8. The usual course following a reserved decision is that the Tribunal's order and the written reasons for that order are issued at the same time.
9. However, given the matters raised by this application and Miss UMG's desire for resolution of the proceedings at the earliest opportunity, the Tribunal issued its order dismissing the application on 11 December 2015. The Reasons for Decision were issued at a later date.

Request to withdraw application

1. During the hearing on 7 December 2015, the applicant advised that he wished to withdraw his application. The Tribunal understood that this request was based on the view that the applicant had formed by the date of the hearing that Miss UMG was capable of providing her own informed consent to the proposed treatment and that he would be willing to accept her consent.
2. The Tribunal may dismiss at any stage any proceedings before it if an applicant withdraws the application (Civil and Administrative Tribunal Act 2013 (NSW) ("CAT Act"), section 55(1)(a)). However, when the application for withdrawal is made in relation to proceedings in the Guardianship Division, an application cannot be withdrawn except with the consent of the Tribunal (CAT Act, Schedule 6, section 10).
3. In considering the applicant's request, the Tribunal had regard to the seriousness of the issues raised in the application, the impact on Miss UMG of the proposed treatment as well as the making of the application, and the efforts of all parties, family members, and people concerned about Miss UMG to engage in the hearing process. The Tribunal also had regard to the late stage at which the applicant sought to withdraw his application although his request, in the Tribunal's view, was not an inappropriate one given the professional evidence available by the time of the hearing.
4. Having considered these matters, the Tribunal decided that it would not consent to the applicant's request to withdraw the application but, rather, would deal with the substantive issues raised by the application.

Legislative framework

1. Before proceeding to an examination of the evidence and submissions made to the Tribunal, it is appropriate to refer to the relevant provisions of Part 5 of the Guardianship Act under which this application was determined.
2. The objects of Part 5 are found in section 32 and are as follows: 32 Objects The objects of this Part are: (a) to ensure that people are not deprived of necessary medical or dental treatment merely because they lack the capacity to consent to the carrying out of such treatment, and (b) to ensure that any medical or dental treatment that is carried out on such people is carried out for the purpose of promoting and maintaining their health and well-being.
3. As previously outlined, Part 5 of the Act applies to a patient who is above the age of 16 years and "who is incapable of giving consent to the carrying out of medical or dental treatment" (Guardianship Act, section 34(1)).
4. Under section 33(2) of the Guardianship Act, a person is incapable of giving consent to the carrying out of medical treatment if the person 1. is incapable of understanding the general nature and effect of the proposed treatment, or 2. is incapable of indicating whether or not he or she consents or does not consent to the treatment being carried out.
5. A person responsible, as defined in section 33A of the Guardianship Act, may give consent to minor and major treatment but not special treatment (section 36(1)(a)). If a person is incapable of giving consent to the carrying out of special treatment, then under Part 5, only the Tribunal may provide consent (Guardianship Act, section 36(1)(b)). Such treatment is defined in section 33(1) of the Guardianship Act as follows: Special treatment means: (a) any treatment that is intended, or is reasonably likely, to have the effect of rendering permanently infertile the person on whom it is carried out, or (b) any new treatment that has not yet gained the support of a substantial number of medical practitioners or dentists specialising in the area of practice concerned, or (c) any other kind of treatment declared by the regulations to be special treatment for the purposes of this Part but does not include treatment in the course of a clinical trial.
6. Regulation 9 of the Guardianship Regulations 2010 (NSW) provides that certain treatment is declared to be "special treatment" for the purposes of paragraph (c) of the definition in section 33(1) of the Guardianship Act. Regulation 10 also prescribes certain treatment as special treatment for the purposes of section 45(3)(b). Neither of those provisions is relevant to this application but have been included for completeness.
7. Any person may apply to the Tribunal for consent to the carrying out of medical or dental treatment on a patient to which Part 5 applies (section 42(1)) and such application must specify the matters as outlined in section 42(2) as follows: 1. the grounds on which it is alleged that the patient is a patient to whom the Part applies; 2. the particular condition of the patient that requires treatment; 3. the alternative courses of treatment that are available in relation to that condition; 4. the general nature and effect of each of those courses of treatment; 5. the nature and degree of the significant risks (if any) associated with each of those courses of treatment; and 6. the reasons for which it is proposed that any particular course of treatment should be carried out.
8. Sections 44 and 45 of the Guardianship Act set out the jurisdictional basis for the Tribunal to give or withhold consent to medical and dental treatment, including special treatment. The exercise of the function is discretionary.
9. Section 44 directs that before consent may be given to medical or dental treatment, the Tribunal must be satisfied that it is "appropriate for the treatment to be carried out". In considering such applications, the Tribunal must have regard to the views of the patient, the person who is proposing that medical treatment be carried out on the patient, and any persons responsible for the patient (section 44(2)(a)). The Tribunal must also have regard to the matters referred to in section 42(2) and the objects of Part 5.
10. Section 45 restricts the Tribunal's power to give consent to the carrying out of any medical or dental treatment in a person to whom Part 5 applies. Depending on the nature of the special treatment proposed, there are different consent regimes set out in section 45 of the Guardianship Act. The consent regime for special treatment under regulation 10, being experimental special treatment, and special treatment under section 33(1)(b), new treatment, is that set out in section 45(3) of the Guardianship Act.
11. An application for consent to special treatment such as the present one under section 33(1)(a) attracts the more stringent consent regime set out in section 45(2). Relevantly, the legislative regime provides that the Tribunal must not give consent unless it is satisfied, first, that the proposed treatment is the most appropriate form of treatment for promoting and maintaining the patient's health and well-being (section 45(1)) and, secondly, that the treatment is necessary to (a) save the patient's life or (b) to prevent serious damage to the patient's health (section 45(2)).
12. An analysis of relevant legal authority in relation to the interpretation of Part 5 of the Guardianship Act is contained in XTV [2012] NSWGT 5 (6 February 2012) at [25]-[49]. The detailed analysis provided in that matter is not repeated here other than to note the Tribunal's reference in that case to the leading authority concerning section 45(2) of the Guardianship Act, namely P& P (1994) 181 CLR 583, in which the Court referred (at [9] of the joint reasons) to the statutory scheme under the Guardianship Act imposing "particularly stringent conditions" in relation to treatment involving sterilisation.
13. The provisions in Part 5 are also subject to the general principles set out in section 4 of the Guardianship Act.
14. Under section 4, it is the duty of everyone exercising functions under the Guardianship Act with respect to persons who have disabilities to observe the following principles: 1. the welfare and interests of such persons should be given paramount consideration, 2. the freedom of decision and freedom of action of such persons should be restricted as little as possible, 3. such persons should be encouraged, as far as possible, to live a normal life in the community, 4. the views of such persons in relation to the exercise of those functions should be taken into consideration, 5. the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised, 6. such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs, 7. such persons should be protected from neglect, abuse and exploitation, 8. the community should be encouraged to apply and promote these principles.

Evidence concerning the proposed treatment

1. Pursuant to directions made on 16 October 2015, the applicant provided a written report dated 21 October 2015 and gave oral evidence at the hearing on 7 December 2015.
2. The applicant's written and oral evidence was that the proposed treatment involves the following:

• the proposed treatment in relation to Miss UMG is the complete removal of her uterus (total hysterectomy) and both ovaries (bilateral salpingo-oophorectomy)
• the procedure would be carried out laparoscopically. Other surgical procedures would only be proceeded with if difficulties were encountered with the laparoscopy
• possible complications are associated with the administration of an anaesthetic in addition to the surgical procedure. The intraoperative and post-operative complications include bleeding, injury to bowel, bladder, ureters, major blood vessels, and blood transfusion. Infection, secondary haemorrhage and thromboembolic problems and the development of haematoma are also possible complications
• long-term consequences include losing the capacity to become pregnant and removing the ovaries will also prevent Miss UMG from donating her eggs in order to have children of her own genetic material
• Miss UMG will not be able to receive hormone replacement therapy for at least six months in the post-operative period because of the risk of activation of residual endometriotic spots. Miss UMG would be placed on alternative medications
• early menopause will have consequences on Miss UMG's skin, bones, and the vitality of her genitals and lower urinary tract. She will need medications to counter these effects
• the procedure is going to completely resolve the irregular uterine bleeding and prevent anaemia. Due to the lack of certainty that Miss UMG's pelvic pain is solely due to endometriosis, it is difficult to judge whether the procedure is going to completely resolve the pain she experiences. According to his written evidence, the applicant expressed the view that "it most probably is going to resolve the pain but I don't think that anyone could be certain and give guarantees of 100%".
• at this stage, the proposed procedure is the best option that the applicant can provide to Miss UMG in Regional NSW. Alternative treatment is conservative treatment, especially with laser, which the applicant does not have the ability to perform in Regional NSW and is not otherwise available locally.

1. In his written evidence, the applicant expressed the view that it is reasonable to proceed with this form of treatment rather than conservative treatment and further surgery, due to Miss UMG's "intractable vaginal bleeding and the deep and extensive nature of endometriosis and the exhaustion of the multiple medical treatment options".

Applicant's evidence

1. The applicant gave evidence that he had accepted Miss UMG's consent for earlier procedures including the April 2014 procedures (hysteroscopy, curettage and Mirena insertion).
2. According to the applicant, he first discussed with Miss UMG the possibility of a hysterectomy sometime after December 2014. According to the applicant's written evidence The patient was demanding to have a radical solution in the form of a hysterectomy. It was explained to her that the LHRH analogues had not been given enough time to work and that hysterectomy was not the optimum method for managing her condition. She was advised to be referred to the chronic pain management, especially after being admitted in April this year [2015] to the surgical unit because of non-specific abdominal pain… At the visit in May, [Miss UMG] reiterated her demand to have hysterectomy since the bleeding was continuous and heavy, in addition to the pain. She was put again on Primolut N in addition to Celecoxib.
3. In relation to the issue of Miss UMG's capacity, the applicant's evidence is that it was following the May 2015 consultation that he made arrangements for an assessment to be made of Miss UMG's capacity to make decisions about her health care. In his written report, the applicant noted that Miss UMG has a learning disability and was also suffering anxiety and was being treated for depression. In his oral evidence, the applicant said that he had only been made aware that Miss UMG had an intellectual disability because it was referred to in the referral form from her general practitioner. According to the applicant, he did not really notice it and "would not have spotted it".
4. The applicant told the Tribunal that he sought a formal assessment of Miss UMG's ability to consent to the proposed treatment and made this application to the Tribunal due to the irreversible nature of the treatment and the consequences of the treatment on Miss UMG's life. The applicant gave evidence that he was initially concerned about Miss UMG's capacity to give informed consent to the proposed treatment as she appeared to him to make a very quick decision to embark on the treatment. The applicant expressed concern about the possibility of Miss UMG coming to regret undergoing the proposed treatment given that she has not had children of her own. The applicant noted that the condition of endometriosis hampers fertility in any event. The applicant expressed the view that, from his observation and discussion with her, Miss UMG is primarily concerned with having the pain sorted and treated completely, and that the long-term consequences are secondary to this.
5. In September 2015, the applicant and Miss UMG again discussed the prospect of radical surgery in the form of a hysterectomy. According to the applicant, he informed Miss UMG that radical surgery would involve removing the whole uterus (total hysterectomy) and both ovaries (bilateral salpingo-oophorectomy) in order to minimise the chance for recurrences and the necessity for further surgery in the future. The procedure and its complications were thoroughly explained to her. Because of the nature of this procedure which will render her sterile and unable to become pregnant even by ovum donation, her case was reported to the tribunal for further assessment.
6. The applicant also arranged for a second opinion with a specialist at another public hospital on 19 January 2016.
7. As previously noted, based on the professional reports provided to the Tribunal concerning Miss UMG's capacity, by the date of the hearing on 7 December 2015, the applicant was content that Miss UMG was able to provide her own consent to the proposed treatment.
8. The applicant was clear that he now supports Miss UMG's decision to have the radical treatment as, in his view, she has exhausted other medical treatments for the condition. The applicant said that the seeking of a second opinion at the other public hospital occurred at his instigation but he is now recommending that the proposed treatment goes ahead and would be comfortable with proceeding with the treatment without a second opinion.
9. The applicant gave evidence that based on his discussions with Miss UMG, he believes that she understands the explanations he has provided to her about the treatment and its consequences. This includes his opinion that although there is a very high chance that the proposed treatment will stop Miss UMG experiencing pain and will prevent the recurrence of endometriosis, he cannot give a 100% guarantee that this will be the case.
10. The applicant also expressed the view that he thought that Miss UMG understands the consequences of the treatment including menopause which will result in hot flushes and will have an effect on her skin and bone density.

Professional assessment evidence

1. The Tribunal was provided with a number of written reports outlining assessments made of Miss UMG's capacity for decision making.

Department of Human Services report

1. A report dated 19 May 2015 was prepared by a Registered Psychologist, on behalf of the Department of Human Services for the purposes of "formal assessment of [Miss UMG's] cognitive functioning to inform decision (sic) related to her disability support pension eligibility, work capacity and most suitable employment service support referral" ("Department of Human Services Report").
2. This report outlined the tests administered, namely, the Weschler Adult Intelligence Scale - Fourth Edition (WAIS-IV) (described as comprehensive clinical instrument for assessing the intelligence of examinees) and the Adaptive Behaviour Assessment System - Second Edition (ABAS II), completed by Miss UMG's aunt (described as assessing an individual's daily adaptive skills and responses to environmental demands against norm-referenced scores for 10 adaptive skill areas).
3. Based on the results from those tests and behavioural observations made on the date of assessment, the author of the report concludes:

• in relation to the WAIS-IV, Miss UMG's general cognitive ability as estimated by that scale, is in the extremely low range of intellectual functioning. Miss UMG's general verbal comprehension abilities were in the borderline range and her general perceptual reasoning abilities were in the extremely low range. Miss UMG's ability to sustain attention, concentrate, and exert mental control was in the extremely low range. Miss UMG's ability to process simple or routine visual material without making errors was in the borderline range when compared to her peers.
• in relation to the ABAS II, Miss UMG adaptive functioning, as estimated by that system, is in the extremely low range of functioning.
• Miss UMG was assessed as "suffering severe impact on functioning due to her diagnosed condition, therefore requiring intense and continuous support and supervision for activities required".

1. The author of the report made a number of recommendations in terms of future referrals for employment support as well as other supports that would assist Miss UMG to manage aspects of work. The author does not appear to have been asked to express an opinion about Miss UMG's capacity for decision making in relation to medical treatment generally nor specifically in relation to the special treatment proposed in this application.

UNE report

1. Miss UMG subsequently underwent psychological assessment at the psychology clinic. A report of the assessment dated 13 October 2015 was provided by Ms Z, Provisional Psychologist, and Dr Y, supervising Clinical Psychologist ("the psychology clinic report"). The authors note that Miss UMG was referred for assessment by a social worker, Ms X, who sought a report specifically for the purposes of these proceedings.
2. The psychology clinic report notes that initial assessment of Miss UMG was undertaken on 7 August 2015 and a clinical interview took place on 23 September 2015. The report also notes that the outcomes of the WAIS-IV and the ABAS II obtained from the Department of Human Services report referred to previously were taken into account. The authors note that the psychology clinic did not re-administer these assessments given the short time period since they were first administered.
3. The psychology clinic report sets out in detail background information including Miss UMG's educational, employment, and medical history.
4. The report outlines a series of questions asked of Miss UMG regarding the proposed medical treatment. The report notes that during the initial assessment interview on 7 August 2015, Miss UMG indicated that she was having a partial hysterectomy involving the removal of her uterus and that this would stop the bleeding but may not stop the pain. The report goes on to note that at this initial interview, Miss UMG was unable to explain what the surgery would entail or how long she would be in hospital following the surgery, but that she would find out from her specialist at her next appointment. There were, according to Miss UMG, no alternatives left to help her symptoms apart from surgery.
5. The psychology clinic report records that during the second assessment interview on 23 September 2015, Miss UMG advised that she was now booked for a full hysterectomy. This would be performed by keyhole surgery and she would only be 'cut open' if there was a problem with the keyhole surgery. Miss UMG told the interviewer that she had a pamphlet from her specialist explaining the procedure. She expected to be in hospital for two to three nights and was aware of a six to eight-week recovery time.
6. In response to a series of questions regarding the procedure, Miss UMG was recorded as responding that endometriosis would still be present if she underwent a partial hysterectomy but also with a full hysterectomy there was a 10 to 15 per cent chance of it returning. According to the report, Miss UMG said that she was not concerned about having a hysterectomy at her age as she does not wish to have children and that she decided she wanted surgical treatment in approximately 2014. The report notes that the interviewer reminded Miss UMG that she had said at the last interview that the bleeding would stop but pain might remain. According to the report, Miss UMG indicated that this was not the case with a full hysterectomy and that her specialist was adamant that the pain would stop.
7. The psychology clinic report notes that when asked about the permanent consequences of her hysterectomy, Miss UMG was unable to speak of any. When prompted that she would be unable to have children, Miss UMG's response indicated that she thought that was obvious. When asked how her life would be different in the long-term, Miss UMG answered that she would not be in pain, she would be happier, and she would no longer get her period. When asked about permanent changes to sexual functioning and desire after a hysterectomy, Miss UMG said that you could not have sex immediately after a hysterectomy until everything is healed. When specifically asked about potential long-term changes to sexual functioning, Miss UMG was not aware of any. When asked about potential complications associated with a hysterectomy, Miss UMG was not aware of any. When Miss UMG was asked if there was information regarding surgical risks in her pamphlets from her specialist, she answered no. When asked a second time about what would change as a result of the hysterectomy, Miss UMG mentioned that she would not require pap smears or have hormones. Miss UMG said that she would require hormone replacement therapy for five years following the hysterectomy and that this was to assist her with hot flushes and sweating.
8. The authors note that Miss UMG's intellectual functioning and overall adaptive functioning, determined from the assessments carried out for the Department of Human Services report, was in the extremely low range. The report noted that Miss UMG has deficits in conceptual, social, and practical skills and these impairments together with her level of intellectual functioning are indicative of intellectual disability. Based on prior assessment Miss UMG was diagnosed under the DSM-5 with intellectual disability with current mild severity.
9. The authors formed the view that overall, Miss UMG's main motivation for the surgical procedure was to stop the bleeding and pain associated with endometriosis and Miss UMG regarded this surgery as a permanent solution to these issues. It is noted in the psychology clinic report that Miss UMG appeared confident about undergoing this surgical procedure and it appeared she had come to the decision independently and without duress. Miss UMG was able to answer questions regarding the purpose and nature of the surgery. However, according to the authors, Miss UMG was unable to name risks associated specifically with a hysterectomy or general risks associated with surgery. Additionally, Miss UMG appeared to have limited understanding of the purpose of a Guardianship Tribunal hearing or why she had to attend.
10. The psychology clinic report concludes that whilst Miss UMG has a diagnosis of intellectual disability, she does demonstrate sufficient capacity to have an understanding of the potential benefits associated with surgery.
11. Miss UMG was able to explain the short-term consequences associated with the surgery, particularly the recovery involved, and also the long-term consequences such as cessation of current pain and bleeding, being unable to have children, absence of periods, not requiring pap smears, and change in hormonal levels.
12. Her understanding of the potential risks associated with surgery, according to the authors, was however absent.
13. The psychology clinic report went on to note that individuals with intellectual disabilities generally require support when making healthcare and legal decisions and that Miss UMG should be provided with the necessary amount of support and information to aid in her decision making. She should particularly be informed and provided with:

• Information regarding the risks associated with surgery and it should be ensured that Miss UMG understands these risks.
• Information about potential long-term consequences of the surgery such that Miss UMG has a clear understanding of these.
• It should also be ensured that Miss UMG understands all relevant information regarding the decision to undergo this surgery.

1. Dr Y gave evidence by telephone during the hearing on 7 December 2015. In his oral evidence, Dr Y noted that the conclusions and recommendations made in the psychology clinic report were based not just on the scores achieved by Miss UMG in the testing outlined but also based on observations of Miss UMG during one-on-one interviews with her.
2. Dr Y noted that notwithstanding the conclusions drawn that Miss UMG's intellectual functioning and overall adaptive functioning was in the extremely low range, her ability to articulate all of the matters outlined in the report concerning the proposed treatment suggested a greater level of capacity than the test results revealed. Dr Y nevertheless noted that he believes that Miss UMG can be led in her views.
3. Dr Y was of the opinion that on the basis of her responses at the clinical interview, Miss UMG does have the ability to express opinions and understand the details of the proposed surgery. The conclusions drawn in the psychology clinic report were as the result of a concern that at the time of the assessment, Miss UMG did not seem to be able to demonstrate an understanding of the risks and potential negative consequences of the proposed treatment. However, with the right information and explanations it is likely, in his view, that Miss UMG would be able to have an understanding of the risks and potential negative consequences of the proposed treatment.
4. Given the critical issue of Miss UMG's capacity under consideration in this matter, it is relevant to note at this point that in a statement dated 1 December 2015 prepared by Miss UMG with the assistance of the separate representative (an addendum to her original statement dated 4 November 2015), Miss UMG comments on certain on aspects of the report written by Dr Y and Ms Z.
5. Miss UMG specifically notes that …at the time of answering the questions asked by [Ms Z] on 19 May 2015 (sic) I did not have the benefit of all the information about the risks, possible implications and end results. I say that I was not provided with the pamphlet prepared by the Royal Australian and New Zealand College of Obstetricians and Gynaecologists titled 'Hysterectomy' until on or around 22 September 2015. I say that I have now had the benefit of information and understand the following: the risks associated with the surgery, the potential long-term consequences of the surgery and all the relevant information regarding my decision to undergo the surgery.
6. In the same addendum, Miss UMG also states:

• I understand that there is a 10 to 15 per cent chance of the endometriosis coming back after the surgery, but I understand that the pain I am experiencing will stop.
• I am aware that after the surgery the bleeding will stop and I understand that after the surgery I will have no ovaries and no uterus. I understand that there are risks associated with the procedure but I believe that there are risks with everything in life but that I still want the operation to take place. I understand that some of the risks involved include heart attack, stroke, and urinary tract infection.
• I understand that the permanent consequences of the surgery include that I will be sterile and that I will never be able to have children, that I will not get my period any more, that I won't need pap smears and that I will require hormone replacements.
• I understand that my sexual functioning will also change following the surgery. I understand that I will not have my period any more. I will experience pain-reduced menopause and that menopause may begin a year or so earlier. I also understand that I will not be able to have any sexual activity for three to six weeks after the surgery. I say that I am not presently sexually active anyway because I am not presently in a relationship.

Psychiatric report

1. A further capacity assessment was undertaken on 18 November 2015 by Dr V. Dr V states that she is a visiting medical officer in psychiatry to a public hospital in Regional NSW and to private hospital in Sydney.
2. Dr V's report notes that she was provided with each of the psychological assessment reports referred to earlier in these Reasons for Decision, the application for consent to special medical treatment, statements by various people including Miss UMG as well as the applicant's report dated 21 October 2015.
3. Dr V's report outlines the questions she asked of Miss UMG about the procedure and Miss UMG's responses. These responses included the following:

• When asked why she wanted a hysterectomy, Miss UMG responded that she wants "to be pain free and live a happy life…I never wanted children and I still don't…I have to take Zoladex for my endometriosis and it makes me feel sick"
• When asked what she understood by the term hysterectomy, Miss UMG responded that it would involve having her uterus, cervix, and ovaries removed and spontaneously volunteered that she would have an early menopause and need hormone replacement therapy
• Miss UMG stated that she would no longer need pap smears but would need breast screening for lumps which may be cancerous
• When asked about risks, Miss UMG listed urinary tract infections, heart attacks, bleeding, clots, and stroke
• When asked what would happen if she did not have the procedure, Miss UMG said that the endometriosis might get worse and that she would not be able to take Zoladex forever

1. Dr V then outlines short answers to questions posed by the separate representative in the request for a report, responding in the affirmative to each of the following questions:

• In your opinion does Miss UMG have the mental capacity to understand the facts involved in the decision making and the main choices she has in her present medical treatment?
• In your opinion does Miss UMG have the mental capacity to weigh up the consequences of those choices and does Miss UMG understand how the consequences affect her?
• In your opinion does Miss UMG have the mental capacity to understand the general nature of and effect of the proposed treatment?

1. Dr V's report also noted that Miss UMG appeared overall to have a better level of understanding of Dr V's questions and the nature of the procedure to be undertaken than Dr V had expected to see after reading the cognitive assessments provided.

Miss UMG's evidence

1. Miss UMG gave evidence in the form of a written statement dated 4 November 2015 and addendum dated 1 December 2015 (prepared, the Tribunal was informed, with the assistance of the separate representative), an affidavit sworn on 16 November 2015 and oral evidence at the hearing on 7 December 2015.
2. In her written statement dated 4 November 2015, Miss UMG wrote that in 2008, she began to experience painful and heavy periods. Under the care of her then GP, Miss UMG was prescribed with different birth control methods to try and manage the extent of the bleeding and pain. These pills included monophasic, biphasic, triphasic, Zoladex, implanon, trifeme, microgynon 50 ED, contraceptive injection (depo provera and depo ralovera).
3. After some time with no improvement, Miss UMG decided to obtain a second opinion and sought out a different GP who referred Miss UMG for an ultrasound and also to consult the applicant.
4. Miss UMG states that she has been diagnosed as having severe endometriosis. She is currently on a Zoladex implant but is still suffering from lower abdominal pain and her periods continue to be very heavy. Miss UMG also states that she is iron deficient and experiences severe pain on a daily basis.
5. Miss UMG's statement outlines the pain and discomfort she has been experiencing. She states that it "is at the point where I cannot go on feeling like this".
6. Miss UMG gave detailed evidence about the impact upon her life of the pain and bleeding that results from the condition of endometriosis.
7. Miss UMG's evidence was that she tries her hardest to help her aunt and uncle around the house on a daily basis but simple tasks, such as washing clothes, housework, vacuuming, etc., become too much for her. Miss UMG states that "having to constantly go to the toilet or sit with my hot water bottle to relieve pain my day is frequently disrupted".
8. Miss UMG experiences pain and discomfort from the time she wakes until the time she goes to bed. Sometimes she is also woken during the night with pain and needs to get out of bed, heat her hot water bottle, and take paracetamol. This is disruptive for Miss UMG, her young cousin with whom she shares a room, and also her aunt and uncle who often have to assist her.
9. Miss UMG described herself as usually having a positive outlook on life and as generally being a positive person. However, as the pain and discomfort have continued to increase, she is no longer feeling positive and feels frustrated with the situation she is in.
10. Miss UMG notes that she used to enjoy going to bingo twice a week as well as meeting friends from time to time, but she no longer does any of this because of how she feels. Miss UMG also used to enjoy going on car trips. At Easter, she went away with her father on a car trip but did not enjoy the trip at all as she was in pain and discomfort for the whole trip. Miss UMG states that she has decided that she wouldn't be able to travel any distance whilst she is experiencing these problems. Miss UMG states she also used to enjoy going for walks with her aunt but that this is also too much for her now.
11. Miss UMG states that in September, her treating doctor suggested that she undergo radical surgery to improve her situation. Miss UMG states I understand that this surgery will involve removing my whole uterus (hysterectomy) and removing both ovaries (bilateral salpingo-oophorectomy). I understand that once I have had the operation, I will not be able to become pregnant, even by ovum donation. I understand that the risks associated with the surgery include but are not limited to: bleeding injury to bowel, bladder, ureters, major blood vessels and blood transfusion, infection, secondary haemorrhage. As well as my Doctor explaining the risks to me I have been provided with a brochure produced by the Royal Australian and New Zealand College of Obstetricians and Gynaecologists which I have read and considered at great length.
12. Miss UMG attached to her statement a copy of the brochure she refers to in her statement.
13. Miss UMG also states that I understand that the proposed surgery is going to completely resolve the irregular bleeding and prevent anaemia. I understand that it cannot be guaranteed that the pain I experience will completely stop, but it may.
14. Later in her statement, Miss UMG states I am not afraid of the operation or having to have anaesthetic and I understand that there is a 10 to 15% chance that the operation may not stop the pain. I want to still try. I say that I want to try and improve how I feel and the situation that I am in. I hope to have the operation as soon as possible so that I can hopefully move forward with my life.
15. Miss UMG notes that I understand that if the surgery goes ahead I will not be able to have children. I do not want children, and never really have. I have beautiful cousins who I enjoy spending time with, and have no desire to have a child of my own.
16. Further to the written statement and addendum referred to previously, an affidavit was also submitted sworn by Miss UMG and dated 16 November 2015 in which Miss UMG confirmed information provided in her previous statement, namely, she wishes to have a hysterectomy because she has severe endometriosis, the risks have been explained to her and that Miss UMG understands that she will be "sterile" and will not be able to have children. Miss UMG notes the risks of the procedure are heart attack and blood clots and that those are risks she is willing to take and that she does not wish to be in pain any more.
17. Miss UMG also gave lengthy and detailed oral evidence at the hearing on 7 December 2015.
18. Miss UMG confirmed that since December 2014 she has taken Zoladex. This medication resulted in the bleeding stopping in approximately March 2015 but that it has not stopped the pain. Miss UMG continues to take medications to try and assist with pain relief but has had three admissions to hospital since that time as a result of pain. Miss UMG gave evidence that was consistent with information provided in her report and it was largely consistent with the detailed evidence provided by the applicant concerning the various treatments that Miss UMG has tried in order to alleviate the pain and bleeding caused by endometriosis.
19. When asked about her understanding of the condition of endometriosis, Miss UMG told the Tribunal that each cycle, the lining of the uterus sheds and can go in to different parts of the body. She has experienced bad pains and has had large blood clots and her cycles have not stopped when they should have and at times her bleeding has lasted for up to two months at a time.
20. When asked by the Tribunal how the issue of a potential hysterectomy was first raised, Miss UMG clarified that on the day following her treatment in December 2014 during which she underwent a laparoscopy and the diagnosis of endometriosis was made, a doctor (but not the applicant) told her that a hysterectomy was likely. Miss UMG told the Tribunal that after this she went home and did her own research on her computer about endometriosis and found out more about what was involved with a hysterectomy. Miss UMG then raised the issue with the applicant. At that time, Miss UMG said that she had had enough of being in pain and thought that a hysterectomy was worth it despite the risks that might be involved.
21. Miss UMG still believes that it would be a good idea to have a hysterectomy. She confirmed again that she knows there is a 10 to 15 per cent chance of the endometriosis returning, there are risks associated with the surgery that she outlined and while there isn't a 100% guarantee, there is a good chance the pain will stop.
22. In response to questions from the Tribunal, Miss UMG did not appear to be aware that if a full hysterectomy and oophorectomy is undertaken, menopause is an immediate result. However, Miss UMG was able to outline some of the likely effects of menopause including hot flushes, the effect on bone density and gaining weight. Miss UMG also noted that since taking Zoladex from December 2014, she feels as though she might already be in an early form of menopause as she experiences hot flushes as a result of that medication. Miss UMG gave evidence that Zoladex makes her feel very sick and she still experiences bad pain. Miss UMG feels that her pain levels have increased rather than lessened since taking Zoladex but, as noted, it has stopped the bleeding.
23. In response to questions from the Tribunal as to how she would see life after the proposed treatment if it took place, Miss UMG told the Tribunal that she intended to return to work in childcare. Miss UMG has a Certificate III in this field and told the Tribunal that she loves working with children and wants to continue in this area of work. She also said that she is very happy to "pass the children back to their parents" at the end of the day.
24. Miss UMG gave evidence that she understood that the proposed treatment would result in the total removal of her ovaries and uterus.
25. Miss UMG told the Tribunal that she understands the permanent consequences of the treatment but that she has never wished to have her own children. She loves spending time with her young cousins, and shares a room with her six year old cousin, but has known for a long time that she does not wish to have children of her own.
26. In relation to the prospect of waiting for the second opinion at John Hunter Hospital in January 2016, Miss UMG said that she would prefer not to wait as she does not wish to be in pain any longer. Miss UMG also told the Tribunal that travelling to and from another part in Regional NSW is also a significant problem for her because of the pain she would experience while travelling.
27. In relation to the applicant's evidence that laser treatment was a possible alternative form of treatment for endometriosis, but was not available in Regional NSW, Miss UMG told the Tribunal that she could not recall that alternative form of treatment being discussed with her.
28. Miss UMG was also able to outline in some detail the risks associated with surgery and general anaesthetic.
29. Miss UMG confirmed that she has given her own consent for all of the other medical procedures she has undergone.
30. In response to a question from the Tribunal about her view of her disability, Miss UMG responded that she has a learning problem. Miss UMG told the Tribunal that she has always had trouble with maths and the time but that if she doesn't know something about these matters she always asks somebody. In response to a question as to how this affects her life in general, Miss UMG responded that it didn't really.

Other evidence

1. Miss UMG's aunt, Ms BAW, gave written and oral evidence. This evidence confirmed that Miss UMG has experienced pain and discomfort for a number of years, noting the "severe pain and trauma Miss UMG has had to endure especially over the last couple of years". In her written statement dated 4 November 2015, Miss UMG's aunt stated that Miss UMG "has made this decision of her own accord to have a hysterectomy, without any influence from any of her family or friends" and expressed the view that the proposed treatment would be "the best outcome for Miss UMG to improve her lifestyle tremendously for the future is to have a hysterectomy. I believe it will allow Miss UMG to live a more normal life, definitely haemorrhage-free and hopefully pain-free".
2. In her oral evidence, Miss UMG's aunt told the Tribunal that she believes that Miss UMG has the capacity to make her own decision about the proposed treatment. She told the Tribunal that Miss UMG has made her own decisions about other medical treatment. Miss UMG's aunt also confirmed that although Miss UMG has taken Zoladex since December 2014 and this has stopped the bleeding, Miss UMG is still regularly in pain and this medication makes her feel very sick.
3. Miss UMG's aunt also gave evidence that Miss UMG has made it known to her family over a number of years that she does not wish to have children of her own. This issue has not arisen just because of the proposed hysterectomy.
4. Miss UMG's uncle, Mr BZN, also gave evidence. Miss UMG's uncle spoke very forcefully about the pain and suffering Miss UMG has experienced. He told the Tribunal that he believes Miss UMG is capable of making her own decisions about these matters. He noted that Miss UMG has already made a lot of good decisions for herself in areas other than her health including going to TAFE and getting her Certificate III qualifications in childcare.
5. Miss UMG's uncle told the Tribunal that he believes that Miss UMG knows whether or not she wishes to have children and understands what it will mean to have the proposed treatment.
6. Miss UMG's uncle also told the Tribunal that he has asked Miss UMG to get a second opinion about the treatment but the decision is up to Miss UMG. He told the Tribunal that if the applicant believes that the surgery is warranted then he would support the decision not to get a second opinion.
7. Ms X provided a written report dated 2 July 2015 in which she outlined a discussion conducted with Miss UMG on that date in relation to the proposed medical treatment. In that report, Ms X expressed the view that Miss UMG was clear about her decision to have the operation and seemed to be aware of its implications. Miss UMG also requested to see Ms X after the procedure for counselling. In Ms X's view, Miss UMG is aware of her limitations and strengths and seems to have appropriate insight into her situation.
8. In oral evidence to the Tribunal, Ms X also outlined the discussion she has had with Miss UMG about the prospect of not having children. Ms X expressed the view that Miss UMG has been clear about her wishes about this issue. She described Miss UMG as being able to advocate for herself and as being very resilient.
9. In response to a question from the Tribunal as to whether Ms X thought that Miss UMG has the capacity to provide her own consent for the proposed treatment, Ms X responded "absolutely" and described Miss UMG as being very conscious of coming to counselling after the surgery.
10. Ms W, Disability Advocate, told the Tribunal that she has only known Miss UMG for a few weeks. This followed a referral from one of Miss UMG's family members. Ms W noted that she has been impressed with Miss UMG's explanation of the procedure and these proceedings and has been very clear with Ms W as to what she has been through and what she wishes to happen. Ms W described Miss UMG as appearing to have demonstrated insight outside her own self in terms of the impact that her condition has on other family members including her cousin that she shares a room with. Miss UMG has expressed concern that it must affect her young cousin when Miss UMG has to get up most nights because of the pain she is experiencing.
11. Ms W also noted that in discussions with Miss UMG about the after effects of a full hysterectomy, Miss UMG advised Ms W that she will need to take patches, describing them as restoring what has been taken from her in terms of hormones.
12. Written statements were also provided by other friends and relatives of Miss UMG. These statements described Miss UMG as living relatively independently in the community, that she drives and undertakes occasional voluntary work with her aunt at her business. There was a consistent view in these statements that although Miss UMG has a learning disability she is capable of making decisions for herself.

Submissions made by the separate representative

1. The separate representative submitted that on the basis of all of the professional reports before the Tribunal, as well as Miss UMG's evidence, the Tribunal should be persuaded that Miss UMG has the capacity to make her own decision about the proposed treatment. The Tribunal should either dismiss the application or consent to the applicant's request to withdraw his application. The separate representative noted that Miss UMG has an appropriate support network in place and that she has relied on this network to discuss the proposed treatment and that she has a clear understanding of the treatment and its consequences. The separate representative noted that as a result of the present proceedings, Miss UMG's understanding of the treatment and its consequences has increased even further.
2. The separate representative submitted that the Tribunal should not draw any adverse conclusions about Miss UMG's evidence that she did not wish to wait until January 2016 to obtain a second opinion. The separate representative noted that the applicant and the separate representative herself had made enquiries about the availability of an appointment for second opinion earlier than January 2016 but this had not been possible. The separate representative submitted that the evidence was clear that Miss UMG continues to experience pain and discomfort, no one else really knows what this is like for her and that it is understandable in these circumstances that Miss UMG wishes to proceed with the procedure.
3. The separate representative acknowledged that given Miss UMG's relative youth, it is understandable to perhaps have some reservations about the proposed treatment given that it will lead to permanent infertility. However, the separate representative submitted that on the basis of the evidence, which she described as persuasive, the Tribunal should be satisfied that Miss UMG has adequately taken into account the fact that she will no longer be able to have children if the treatment takes place.

Application of Part 5 of Guardianship Act - Must be "incapable of giving consent"

1. As previously outlined, section 34(1) of the Guardianship Act provides that the provisions of Part 5 will only apply to a patient who is, relevantly, "incapable of giving consent to the carrying out of medical or dental treatment".
2. Section 33(2) of the Act gives meaning to incapability, namely:

• That the person is incapable of understanding the general nature and effect of the proposed treatment, or
• Is incapable of indicating whether or not he or she consents or does not consent to the treatment being carried out

1. There is limited superior court authority concerning section 33(2) of the Guardianship Act (or its equivalent in other jurisdictions - however, see below the comments made in C v Guardianship and Administration Board [2002] TASSC 29) to assist in considering the scope of the provision.
2. Accordingly, in accordance with well-accepted principles of statutory construction, the task of statutory interpretation "must begin with a consideration of the text itself" (Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41 at [47] (Hayne, Heydon, Crennan, Kiefel JJ). The starting point is to consider the ordinary and grammatical sense of the statutory words to be interpreted having regard to their context and legislative purpose (Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 at [69] (McHugh, Gummow, Kirby, Hayne JJ)). In doing so, recourse may be had to dictionary definitions of these words (Pearce and Geddes, Statutory Interpretation in Australia, (8th Edition 2014, LexisNexis Butterworths Online [3.30]). Having regard to these principles, the following observations may be made.
3. As to the degree of understanding required in relation to the general nature and effect of proposed treatment, the ordinary plain English meaning of the word offers a number of alternatives. See, for example (Macquarie Dictionary (online edition)):

• to perceive the meaning of; grasp the idea of; comprehend
• to be thoroughly familiar with; apprehend clearly the character or nature of
• to grasp the significance, implications, or importance of
• to regard or take as a fact, or as settled
• to get knowledge of; learn or hear
• to accept as a fact; believe

1. The ordinary dictionary meaning of general suggests that in order to be found to be incapable of understanding the "general nature and effect" of the proposed treatment, a person must be incapable of understanding the main features or elements of the proposed treatment (Oxford English Dictionary (online edition)). It does not entail being incapable of understanding the specific, special (Macquarie Dictionary (online edition)) or exact or detailed (Oxford English Dictionary (online edition)) nature and effect of the proposed treatment.
2. As previously noted, regard must also be had to context and legislative purpose to properly understand the scope of the provision, particularly given, as noted above, the breadth of the ordinary meanings able to be given to the words of the provision.
3. The fundamental presumption of capacity is the starting point from which the provisions of Part 5 must be considered. The common law presumes that adults have the capacity to make decisions that affect their own lives unless that presumption is rebutted (Hunter and New England Area Health Service v A [2009] NSWSC 761 ("Hunter and New England Area Health Service") at [23]). Whilst this presumption has not been given explicit statutory force in Part 5 of the Guardianship Act, it is nevertheless regarded as starting from this basis given that Part 5 of the Act only has application if a person is incapable of giving consent to the carrying out of medical or dental treatment pursuant to section 34(1). The provisions of section 33(2) should therefore be viewed in light of this presumption.
4. The context in which sections 34 and 33(2) need to be understood also includes the objects of Part 5 that are set out in section 32 of the Guardianship Act. Of particular note is section 32(a) that states one of the objects as being (a) to ensure that people are not deprived of necessary medical or dental treatment merely because they lack the capacity to consent to the carrying out of such treatment, (emphasis added)
5. The reference to "capacity" reflects the broader language of the common law even though the term is not used in sections 33(2) or 34.
6. Neither the Second Reading Speeches nor the Explanatory Memoranda associated with the Disability Services and Guardianship Bill 1987 (that introduced what is now Part of the Guardianship Act) provide insight into the meaning to be given to the provisions dealing with capability (or lack thereof) to consent to treatment.
7. However, the relevant context within which section 33(2) should be understood is also the broader legal framework within which Part 5 of the Guardianship Act operates in terms of proscribing the basis upon which consent for, relevantly, medical treatment in relation to adults operates in NSW. This context involves not only the provisions of the CAT Act and Guardianship Act, but also the parens patriae jurisdiction of the Supreme Court.
8. It is well established that the Guardianship Act should be construed beneficially having regard to its protective character (P v NSW Trustee and Guardian [2015] NSWSC 579 at [56]). The centrality of the principles contained in section 4 of the Guardianship Act (set out in full at [45] above), and their role in informing consideration of the Act including Part 5, is reinforced by Schedule 6, clause 5(1) of the CAT Act which provides that, when exercising a "Division function", the Tribunal is under a duty to observe the principles set out in section 4 of the Guardianship Act.

• Comprehending and retaining treatment information
• Believing it
• Weighing it in the balance to arrive at a choice

1. Looking to the common law authorities also accords with decisions of the former Guardianship Tribunal (see TAC [2010] NSWGT 23 (23 July 2010) and SKX [2010] NSWGT 29 (1 December 2010) ("SKX")).
2. Other aspects of section 33(2) also warrant mention.
3. The provision requires consideration of the two separate aspects of section 33(2)(a) of the Guardianship Act, namely whether the person is incapable of understanding the general nature of the proposed treatment and whether the person is incapable of understanding the general effect of the treatment. In C v Guardianship and Administration Board [2002] TASSC 29, a decision that considered a provision identical in its terms in the Guardianship and Administration Act 1995 (Tas) to section 33(2)(a) of the Guardianship Act, then Justice Blow makes the point (at [3]) that the findings on the evidence in relation to each of these aspects may be different to the other.
4. The provision is concerned with the treatment as it relates to the individual concerned, not with the effect of treatment in patients in general (C v Guardianship and Administration Board [2002] TASSC 29 at [6]). A person may therefore be regarded as being incapable of understanding the nature and effect of the treatment in circumstances where that person understands the general nature and effect of a particular drug in relation to patients at large, but does not have insight into his or her own condition and therefore opposes the use of such treatment in relation to him/her.
5. His Honour also notes (at [6]) that the word "general" in the equivalent provision to section 33(2)(a) "does no more than refer to an understanding in general terms, rather than an understanding as to matters of detail".

Tribunal's findings

1. As a preliminary issue, the Tribunal observes that based on Miss UMG's evidence and general demeanour on the day of the hearing, she appeared to the Tribunal to be considered and articulate. Miss UMG engaged meaningfully in the hearing process and answered the questions posed to her by the Tribunal to the best of her ability.
2. The Tribunal accepted the evidence provided by Miss UMG, members of her family and by the applicant that Miss UMG has experienced chronic pain on a regular basis for a number of years as a result of what was diagnosed approximately one year ago as deep infiltrating endometriosis. The impact of this condition on Miss UMG's quality of life was very persuasively described by Miss UMG as well as her uncle and aunt who have observed at close quarters the significant and chronic pain Miss UMG has experienced and the impact on her ability to work, travel, and socialise. The evidence indicates that the excessive bleeding that Miss UMG had been experiencing ceased from approximately March 2015 due to the administration of Zoladex on a monthly basis but that the side-effects of this treatment have been very unpleasant for Miss UMG. The evidence provided by the applicant was to the effect that Zoladex is only a short-term solution and could only be taken for a maximum of two years but ideally one year. Miss UMG has already taken this medication for 12 months and the evidence was that this medication itself has adverse side-effects including loss of bone density.
3. As previously stated the critical issue in this matter concerned Miss UMG's ability to consent to the proposed treatment.
4. The starting point is that as an adult, Miss UMG is presumed to have the necessary capacity to consent to the proposed treatment. It is only if the evidence supported a finding that Miss UMG was incapable of understanding the general and nature and effect of the proposed treatment that the provisions of Part 5 of the Guardianship Act would apply to her.
5. The Tribunal therefore needed to make findings as to the following matters:

• The nature of the proposed treatment
• The effect of the proposed treatment
• Is Miss UMG incapable of understanding the general nature and effect of the proposed treatment, in that, is she unable to comprehend and retain the information which is material to the decision, in particular as to the consequences of the decision, or is she unable to use and weigh the information as part of the process of making the decision (Re JS [2014] NSWSC 302 at [18] (Darke J); Hunter and New England Area Health Service at [23]-[25] (McDougall J)).

1. Having regard to the written and oral evidence provided in this matter, the Tribunal accepted that the following matters were established to the requisite civil standard.

Findings as to the nature of the proposed treatment

1. The proposed treatment in relation to Miss UMG is the complete removal of her uterus (total hysterectomy) and both ovaries (bilateral salpingo-oophorectomy).
2. The proposed treatment would be carried out by way of laparoscopy. Surgery would only be contemplated if difficulties were encountered with the key hole surgery.

Findings as to the effect of the proposed treatment

1. Possible complications arising from the surgery include side effects associated with the administration of an anaesthetic. The possible intraoperative and post-operative complications include bleeding, injury to bowel, bladder, ureters, major blood vessels, and blood transfusion. Infection, secondary haemorrhage, and thromboembolic problems and the development of haematoma.
2. The effect of the proposed treatment includes the following:

• The proposed treatment would completely resolve the irregular uterine bleeding that Miss UMG experiences and would prevent anaemia
• The applicant was unable to guarantee that an effect of the proposed treatment would be to completely resolve the pain that Miss UMG experiences. This is because of the lack of certainty that Miss UMG's pelvic pain is solely due to endometriosis. However, the applicant is of the view that the proposed treatment "most probably is going to resolve the pain"
• As a result of the total hysterectomy, Miss UMG will lose the capacity to become pregnant
• As a result of the bilateral salpingo-oophorectomy, Miss UMG will also be prevented in future from donating her eggs in order to have children
• Miss UMG will experience immediate, early menopause. Early menopause will have consequences on Miss UMG's skin, bones, and the vitality of her genitals and lower urinary tract
• Due to the condition of endometriosis, Miss UMG will not be able to receive hormone replacement therapy for at least six months in the post-operative period because of the risk of activation of residual endometriotic spots. Miss UMG will, however, be placed on alternative medication for this period

Findings as to whether Miss UMG is incapable of understanding the general nature and effect of the proposed treatment

1. The Tribunal notes the content of the psychology clinic report prepared by Ms Z and Dr Y that indicated that during the initial assessment interview (on 7 August 2015), Miss UMG indicated that she was having a partial hysterectomy involving the removal of her uterus. They also noted that Miss UMG was unable to explain what the surgery would entail. However, the psychology clinic report also records that during the second interview (on 23 September 2015), Miss UMG advised that she understood that a full hysterectomy was proposed.
2. In his oral evidence, Dr Y noted that notwithstanding the results of testing conducted in May 2015 that indicated that Miss UMG's intellectual functioning and overall adaptive functioning was in the extremely low range and were indicative of a mild intellectual disability, Miss UMG's ability to articulate the details of the proposed treatment suggested a greater level of capacity than the test results revealed. Dr Y expressed the opinion that on the basis of her responses at the clinical interview, Miss UMG does have the ability to express opinions and understand the details of the proposed surgery.
3. In her evidence to the Tribunal, Miss UMG gave an accurate description of the proposed treatment, namely removal of her uterus and removal of both of her ovaries, that it would occur under general anaesthetic and by way of laparoscopy.
4. On the basis of her oral evidence, it is fair to say that Miss UMG did not appear to have a sophisticated anatomical understanding of what would occur if the proposed treatment proceeded. This degree of understanding of the proposed treatment is not, however, necessary in order for a person to have a general understanding of proposed medical treatment and nor, in the Tribunal's view, is it a level of understanding required of the general population, with or without a decision-making disability.
5. The Tribunal had careful regard to Miss UMG's oral and written evidence. Her evidence was consistent with the content of the psychology clinic report as it refers to Miss UMG's description of the proposed treatment by the time of her second interview with the authors of that report and Dr Y's oral evidence. The Tribunal accepted the evidence of family members and others that Miss UMG has provided consistent descriptions of the proposed treatment over a period of time.
6. On the basis of this evidence, the Tribunal found that Miss UMG comprehends the main features of the proposed treatment and is able to retain the information that she has been provided by the applicant about the nature of the treatment. The latter was evidenced by her ability to recount the details of the proposed treatment to different people over a period of time and to the Tribunal at the hearing.
7. The authors of the psychology clinic report also expressed the view that Miss UMG demonstrates sufficient capacity to have an understanding of the potential benefits of the proposed treatment. The report noted that Miss UMG was able to explain the short-term consequences associated with the surgery, particularly the recovery involved, and also the long-term consequences such as cessation of current pain and bleeding, being unable to have children, absence of periods, not requiring pap smears, and changes in hormonal levels.
8. However, the authors also expressed the view that Miss UMG's understanding of the potential risks associated with surgery was absent.
9. In his oral evidence, Dr Y elaborated on this point, noting that at the time of the assessment, Miss UMG did not seem to be able to demonstrate an understanding of the risks and potential negative consequences of the proposed treatment. However, Dr Y also expressed the opinion that with the right information and explanations, it is likely that Miss UMG would be able to have an understanding of the risks and potential negative consequences of the proposed treatment.
10. The latter opinion was consistent with the content of the concluding comments contained in the psychology clinic report (in relation to which Dr Y was a co-author) that "individuals with intellectual disabilities generally require support when making healthcare and legal decisions and that Miss UMG should be provided with the necessary amount of support and information to aid in her decision making".
11. In this regard, the Tribunal notes, and agrees with, the view expressed by the former Guardianship Tribunal in SKX (at [41]) that the capacity for some persons with milder intellectual disability to make informed consent decisions may change over time with targeted training/educational/support sessions.
12. The results of the assessment undertaken by Dr V on 18 November 2015 (approximately two months after the second interview with the psychology clinic professionals) would appear to bear this out. The information provided by Miss UMG to Dr V on that occasion indicates that Miss UMG's understanding of the proposed treatment and its short and long-term consequences on her had increased over that period. This led Dr V to form the clear view that Miss UMG had the capacity to understand the facts and choices she has, to weigh up the consequences of those choices, and how the consequences might affect her.
13. In addition, as noted previously, Miss UMG filed an addendum dated 1 December 2015 to her original written statement dated 4 November 2015 in which she addressed these concluding comments. Miss UMG also gave oral evidence about these matters.
14. Miss UMG's evidence was to the effect that at the time of answering the questions asked at the first assessment interview, she did not have the benefit of all of the information about the risks, possible implications and the end result and had not been provided with a pamphlet proving information about hysterectomies prepared by the Royal Australian and New Zealand College of Obstetricians and Gynaecologists until around 22 September 2015.
15. The addendum outlined Miss UMG's understanding that:

• The permanent consequences of the surgery include that she will be sterile and will never be able to have children
• Although noting that she is not presently sexually active, her sexual functioning will also change following the surgery
• There are risks associated with the procedure including heart attack, stroke, and urinary tract infection
• She will experience pain reduced menopause and that menopause may begin a year or so earlier

1. Miss UMG's oral evidence was to similar effect. Miss UMG gave evidence that indicated her understanding that the proposed treatment would result in the cessation of bleeding, that there was a high chance (but no guarantee) that her pain would cease, that she would be infertile as a result of the treatment, and that menopause would result.
2. There were other aspects of Miss UMG's evidence that also warrant mention. Miss UMG gave oral evidence that once diagnosed with endometriosis, she undertook her own online research into the condition and the treatment options. In her written and oral evidence, Miss UMG gave a clear and detailed account of the many treatments that she has tried in order to treat her condition and the pain and bleeding that she has experienced. This account was consistent with the treatment history provided by the applicant and is relevant to the issue of whether or not Miss UMG understood the general effect of the proposed treatment.
3. The authorities make clear that in assessing whether a person has capacity to make a decision, the sufficiency of the capacity must take into account the importance of the decision (Hunter and New England Area Health Service, [24]). In a case such as this where the treatment will result in permanent, irreversible infertility, the Tribunal also considered Miss UMG's understanding of not only the fact of permanent infertility as a result of the proposed treatment, but also her understanding and appreciation of the potential impact of this outcome on her life.
4. Miss UMG's evidence indicated that she has given considerable thought to the prospect that undergoing the proposed treatment will result in permanent infertility. Miss UMG told the Tribunal that she has never wished to have her own children. The evidence of her family members, in particular Miss UMG's aunt and uncle, was to the effect that Miss UMG has expressed this view to them over a much longer period of time than the period over which this proposed treatment has been discussed.
5. The separate representative submitted to the Tribunal that whilst it may be understandable to have a reservation about this issue, the Tribunal should nevertheless be satisfied on all of the available evidence that Miss UMG has given this particular consequence due consideration and understands the consequence.
6. A person's views about the desire to have a child can, of course, change and to undergo treatment that has the clear consequence of permanent infertility is likely to be a significant step for any woman who has not already experienced menopause. There is, of course, no guarantee that Miss UMG will not come to regret a decision that leads to permanent infertility. That is also a possibility that could be faced by any woman in Miss UMG's situation, without a diagnosed disability. There are also, undoubtedly, many uncertainties in relation to the issue of fertility and, as noted by the applicant, especially in relation to someone, such as Miss UMG, who has a diagnosis of deep infiltrating endometriosis.
7. Nevertheless, the Tribunal was persuaded on the available evidence that Miss UMG does understand the implications and significance of permanent infertility for her and her future. This was based not only on the Miss UMG's oral and written evidence, which the Tribunal found persuasive, but also on the fact that she has expressed a consistent view about this issue to those professionals whose evidence has been discussed in these Reasons for Decision and who have each expressed the view that Miss UMG understands the consequences of this aspect of the treatment. Of considerable significance, in the Tribunal's view, was also the evidence of Miss UMG's family members as to her views expressed over a lengthy period of time that she does not wish to have children of her own. The evidence was that Miss UMG has weighed the permanent effect of the proposed treatment against other factors relevant to the decision making process. The fact that she has been firm in her expressed wish to have a hysterectomy does not mean, in the Tribunal's view, that she has not given appropriate weight to the prospect of permanent infertility. The evidence was that Miss UMG has decided that relief from the chronic and severe levels of pain that result from the condition of severe endometriosis, and its impact on her quality of life, outweighs the fact of permanent infertility that will be brought about by the treatment.

Conclusion

1. As previously noted, the Tribunal was satisfied that Miss UMG comprehends the main features of the proposed treatment and is able to retain the information that she has been provided with as to the nature of the treatment.
2. Further, on the basis of Miss UMG's oral and written evidence, the content of the psychology clinic report, Dr V's report, Ms X's evidence, as well as the applicant's own evidence that by the time of the hearing he had formed the view that Miss UMG understood the implications of the proposed treatment, the Tribunal found that Miss UMG comprehends and is able to retain information as to the effects of the proposed treatment and its consequences. For the reasons discussed, the Tribunal was satisfied that Miss UMG comprehends the significance of permanent infertility for her and her future. The evidence persuaded the Tribunal that she has been able to seek, use and weigh information provided to her about the short and long term consequences of the treatment as part of the decision making process. In particular, the Tribunal accepted the evidence that Miss UMG has explored numerous other medical treatments to address the pain and distress that she has experienced as a result of the condition of severe endometriosis but without success. The Tribunal accepted that Miss UMG has decided that relief from the chronic and severe levels of pain that result from this condition, and its impact on her quality of life, outweighs the fact of permanent infertility that will be brought about by the proposed treatment.
3. In these circumstances, the Tribunal was not satisfied that Miss UMG is incapable of understanding the general nature and effect of the proposed treatment.
4. As such, Miss UMG is not incapable of giving consent to the carrying out of the proposed medical treatment (Guardianship Act, section 34(1)). Part 5 of the Guardianship Act does not therefore apply to Miss UMG, and the application was dismissed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 July 2016