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

The hearing

1. At the end of these Reasons for Decision are lists of the parties to the application and the witnesses who attended the hearing. [Appendix removed for publication.]
2. Miss OBD did not participate in the hearing. At the hearing conducted on 16 June 2015, Dr DEJ said in his opinion Miss OBD would become bored and "mischievous" if required to be in the room for a lengthy period and that as she is non-verbal and would not understand the proceedings he was of the view that it was inappropriate for her to participate in the hearing. There was no dissent from Dr DEJ's view and the Tribunal was satisfied that it was in Miss OBD's best interests to conduct the hearing in her absence.
3. The Tribunal was not provided with any new evidence about Miss OBD's disability which the Tribunal accepts is permanent, and the likely effects on her of participation in the hearing. The Tribunal was of the view that it should proceed with the current hearing in her absence for the same reasons that it came to that conclusion on 16 June 2015.

What did the Tribunal have to consider?

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 s 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. If a person is incapable of giving informed consent to special medical treatment then only the Tribunal may provide consent (Guardianship Act, s 36(1)(b)). Special medical treatment is defined in s 33(1) of the Guardianship Act as including: "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"
4. Under s 33(2) of the Guardianship Act, a person is incapable of giving consent to the carrying out of medical treatment if the person (a) is incapable of understanding the general nature and effect of the proposed treatment, or (b) is incapable of indicating whether or not he or she consents or does not consent to the treatment being carried out.
5. The Guardianship Act (s 45(2)) requires that the Tribunal must not give consent to the carrying out of special treatment unless it is satisfied that the treatment is necessary to: 1. save the patient's life; or 2. to prevent serious damage to the patient's health (Guardianship Act)
6. The Guardianship Act imposes a further consideration on the Tribunal in s 44. That section directs that if consent is to be given to medical or dental treatment, the Tribunal must be satisfied that it is "appropriate for the treatment to be carried out" and 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. The Tribunal must also take into account matters set out in s 42 of the Guardianship Act which are: 1. The grounds on which it is alleged that the patient is a patient to whom this 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.
7. 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), [25]-[49]. In that matter the Tribunal referred to the matter of Department of Health and Community Services v JWB & SMB (Marion's Case) [1992] HCA 15; 1992 175 CLR 218). That matter involved provisions of the Family Law Act 1975 (Cth) under which the Family Court could consent to surgery that was in the best interests of the child. In that matter the High Court examined factors that combine to indicate that a decision to authorise sterilisation is a "special case" and at [73]-[74] states that whilst it is not possible to formulate a strict rule about 'best interests', sterilisation is a "step of last resort".
8. In the matter of XTV, the Tribunal also examined the matter of JLS v JES (1996) 20 Fam LR 485. That matter involved an application to consent to sterilisation of a 14-year-old girl. Consent was sought under the (then) Children (Care and Protection) Act 1987 (NSW) which required that the treatment was necessary to save the child's life, or to prevent serious damage to the child's health. In that matter, Bryson J referred to the test as being "stringent" and requiring the treatment as a "necessity" because other methods had been tried and failed.
9. In the matter of XTV, the Tribunal also considered the matter of P v P (1994) 181 CLR 583 in which the High Court dealt with a case in which parents had sought the consent of the Family Court to the sterilisation of a young woman and had made it clear that they did not intend to seek authorisation under the Guardianship Act. The Family Court sought the High Court's decision as to whether consenting to the treatment would be contrary to the Guardianship Act which posed a more stringent test. In that matter the High Court referred to the distinction drawn in the Guardianship Act between special treatment as defined in paragraph (b) of the definition of "special treatment" in s 33(1) of the Act and special treatment as defined in paragraph (a) of the definition, which includes any treatment likely to have the effect of rendering permanently infertile the person on whom it is carried out. The latter category of special treatment attracts the additional requirements set out above as being that the Tribunal must be satisfied that the treatment is necessary to save the patient's life or to prevent serious damage to the patient's health. The High Court referred to the latter requirement as imposing "particularly stringent conditions" in relation to treatment involving sterilisation.
10. In summary, therefore, the issues for determination by the Tribunal were as follows: 1. Is the treatment proposed by the applicant "special medical treatment"? 2. Is Miss OBD incapable of giving consent to the proposed special treatment? 3. Is the treatment necessary to save Miss OBD's life or is the treatment necessary to prevent serious damage to her health? 4. Is the proposed special treatment the most appropriate form of treatment for promoting and maintaining Miss OBD's health and well-being?

Is the proposed treatment 'special treatment'?

1. As noted above, special treatment is defined in the Guardianship Act as being treatment that is "intended, or is reasonably likely, to have the effect of rendering permanently infertile" the person who receives the treatment.
2. The published Reasons for Decision of the Tribunal upon adjourning the matter in June 2015 indicate that it did so to obtain further medical advice. Those Reasons state, in part: "In his application [Dr DEJ] describes the proposed treatment as special medical treatment. However in a report to the Tribunal dated 12 June 2015, [Dr Y], an Obstetrician and Gynaecologist makes the following comments about the proposed treatment: "The procedure itself does not result in sterility. The woman can still fall pregnant, but it is not recommended that they do so, as any subsequent pregnancy can result in complications such as placenta accreta…Hence, after an endometrial ablation, we recommend some form of contraception…" In her letter [Dr Y] distinguishes the proposed treatment from a hysterectomy that would result in the sterility. During the hearing both [Dr DEJ] and [Dr X] said that in their opinions the proposed procedure would not render a woman infertile because it would not prevent the production of ova. They also agreed that the procedure would not prevent fertilisation of an ovum though it would reduce, almost to zero, the chance of implantation of the fertilised ovum. However no-one present at the hearing was able to confidently assert that the procedure was not "reasonably likely" to have the effect of rendering [Miss OBD] permanently infertile. The Tribunal was not able to speak to [Dr Y] about this issue. The Tribunal was of the view that without further specialist medical evidence it was not in a position to decide whether the proposed procedure constitutes special medical treatment. It therefore decided to adjourn the hearing and to seek additional evidence from [Dr Y] including whether or not the procedure would be "reasonably likely" to render [Miss OBD] permanently infertile.
3. In the letter dated 12 June 2015, Dr Y recommended that if Miss OBD were to have the endometrial ablation she should also have an Implanon inserted to prevent conception that could result in complications such as placenta accrete.
4. In a letter to the Tribunal dated 7 July 2016 Dr Y states that: "Having an endometrial ablation will make any future conceptions unlikely to implant in the uterus, hence making any possible future pregnancies unlikely. However the procedure does not prevent conception from happening and furthermore it is not recommended that the woman carry any pregnancies once she has had this procedure. It is recommended that women continue to have some form of contraception of this procedure. In essence, having an endometrial ablation means that [Miss OBD] will be 'sterile' in that she should not be allowed to fall pregnant.
5. In deciding whether or not the proposed treatment is "special treatment" the Tribunal sought to discover the meaning in the Guardianship Act of the words "permanently infertile".
6. 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, [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.
7. Having regard to these principles the following observations may be made: 1. Black's Law Dictionary (10th ed 2014) defines "infertile" as "unable to conceive or bear offspring; sterile". 2. The Macquarie Dictionary (https://www.macquariedictionary.com.au) defines "infertile" as "unfruitful; unproductive; barren" and defines "permanent" as "lasting to intending to last indefinitely, remaining unchanged, not temporary, enduring" 3. The Oxford English Dictionary (Oxford University Press, 2016) defines "infertile" as "unfruitful, unproductive, barren, sterile" and defines "permanent" as 'so as to last or continue; lastingly; enduringly, for good.
8. The World Health Organisation definition of infertility is "a disease of the reproductive system defined by the failure to achieve a clinical pregnancy after 12 months or more of regular unprotected sexual intercourse" (www.who.int/reproductivehealth/topics/infertility/definitions/en)
9. A Senate Committee Report titled "Involuntary or Coerced Sterilisation of People with Disabilities in Australia" makes the following comments regarding the definition of "permanent sterilisation": "1.23 The permanent sterilising procedures mentioned during this inquiry included: Hysterectomy - removal of the uterus and, depending on the need, the removal of the cervix, fallopian tubes, ovaries and part of the vagina. Tubal ligation - blocking or closing of the fallopian tubes. It causes infertility but ovulation and menstruation can still occur. Endometrial ablation - laser technology or similar is used to destroy the uterine lining, predominantly for the purpose of reducing or stopping menstrual loss. This process alone does not render a woman infertile but it is often performed in association with a tubal ligation… 1.24 Permanent sterilisation procedures are in the majority of cases either completely non-reversible or difficult to reverse. The likelihood of a successful pregnancy after a sterilisation reversal is lower than that prior to sterilisation. However, pregnancy is not impossible if a sterilisation procedure fails. For example tubal ligation has a 3/1000 chance of failure rate. Pregnancy can also be dangerous if a sterilisation procedure fails. For example pregnancy after an endometrial ablation can be life threatening to both the foetus and woman due to uncontrolled bleeding."
10. Taking all of these matters into consideration the Tribunal came to the conclusion that the most commonly expressed meaning of "permanently infertile" as applied to reproduction refers to the inability to reproduce. Hence, the ability to conceive under conditions that could not result in a viable pregnancy would not prevent a woman from being considered to be permanently infertile.
11. In the matter of BAH [2009] NSWGT 8, the (then) Guardianship Tribunal of NSW considered an application for endometrial resection. The published Reasons for Decision for that matter record that the Tribunal was advised by the treating gynaecologist that pregnancies have been reported following the procedure, but the chance of pregnancy was very minimal and that the treatment was likely to have the effect of rendering the recipient permanently infertile. On that occasion the Tribunal was satisfied that the treatment was "special medical treatment" under the Guardianship Act.
12. In the matter of XTV (supra) the evidence to the Tribunal was that the proposed endometrial ablation would render the recipient sterile.
13. In the matter of PYR [2012] NSWGT 30 (23 November 2012), it was accepted by the (then) Guardianship Tribunal that the proposed combination of endometrial ablation and tubal obstruction would lead to permanent infertility and was special treatment under the Guardianship Act.
14. During the hearing, Dr DEJ said that his enquiries of an obstetrician suggested that the extent to which a person would be rendered infertile by the treatment might depend on how it was carried out but if the endometrium were completely removed the result would be reasonably likely to cause infertility. He said that he also had been advised that the permanency of the treatment depended on how it was carried out because some ablation procedures allowed the endometrium to grow back.
15. Taking into account the definitions referred to above and the previous decisions of the (then) Guardianship Tribunal as well as the evidence provided in this matter, the Tribunal is satisfied that the proposed endometrial ablation is treatment that is reasonably likely to render Miss OBD permanently infertile and therefore it is "special treatment" under the Guardianship Act.

Is Miss OBD incapable of providing consent to the proposed treatment?

1. Section 33(2) of the Guardianship Act provides that a person is incapable of giving or withholding consent to medical or dental 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. 1. In his application Dr DEJ states that Miss OBD: 1. has limited verbal ability and is able to use only two to three one word verbalisations. 2. is not able to express whether she needs medical attention and relies on staff to assign meaning to her communication. 1. In a letter dated 30 June 2014 addressed "To Whom it May Concern", Dr DEJ states that Miss OBD has "profound cognitive delay and is presently operating at a two to three-year-level of development cognitively. It is therefore impossible for Miss OBD to make personal decisions related to her life". 2. In a report to the Tribunal dated 4 September 2014, Dr X of a medical centre in regional NSW states that he has been Miss OBD's GP since 2004. He describes her as having a severe intellectual disability resulting from Angelman Syndrome.
2. There was no evidence contrary to that of Dr X and Dr DEJ regarding Miss OBD's intellectual disability.
3. The Tribunal accepts the evidence of the medical practitioners that Miss OBD has at least a severe intellectual disability as well as communication difficulties that are such that she is both incapable of understanding the general nature and effect of the proposed treatment and is also incapable of indicating whether or not she consents or does not consent to the treatment being carried out.

What is the particular condition of the patient that requires treatment?

1. In the application, Dr DEJ states that the condition requiring treatment is that Miss OBD has irregular heavy periods sometimes lasting up to 15 days at a time. She is unable to manage her menstrual cycle and is not able to communicate pain experienced during menstruation.
2. In a letter dated 19 February 2015 addressed to Dr X, Dr Y states that Miss OBD has irregular vaginal bleeding varying in length from a few days to weeks and of varying flow. She also appears to get cyclical symptoms such as headaches and cramping and the symptoms appear to distress her and can result in her punching walls.
3. In a letter dated 4 December 2015 addressed to the Tribunal, Dr Y states that she saw Miss OBD in September 2015 at which time she had continued to have almost constant vaginal bleeding in the form of bleeding for two to three days followed by spotting until the next bleed after approximately two weeks. When seen again on 23 November 2015, those symptoms remained the same and Miss OBD also continued to have symptoms such as headaches, cramping and bloating.

What are the reasons for the proposed treatment?

1. The treatment is proposed to stop or reduce Miss OBD's menstrual bleeding. In her letter dated 12 June 2015, Dr Y states that in 60% of cases the procedure causes permanent amenorrhea. In 20% of cases, menstruation continues but is much lighter and in 20% of cases the previous bleeding pattern is not changed.
2. During the hearing, Dr DEJ also said that in his opinion another reason for the treatment was to prevent Miss OBD from becoming pregnant because pregnancy could represent a serious risk to her health.

What are the alternative options for treatment that are available?

1. In the application, Dr DEJ states that Miss OBD had a Mirena Levengestoral inserted and whilst it minimised the heaviness of her periods it did not manage the frequency or duration of the bleeding.
2. In her letter dated 12 June 2015, Dr Y states that the Mirena was unsuccessful in rendering Miss OBD amenorrhoeic. She also states that she had inserted an Implanon under Miss OBD's skin to suppress ovulation in the hope that to do so would reduce her headaches and also reduce her menstrual flow. She said that another alternative was a continuous regime of the contraceptive pill.
3. In her letter dated 7 July 2015, Dr Y raises concerns about whether Miss OBD would comply with daily pill taking and that an alternative to a continuous regime of contraceptive pills could be Depo Provera injections. However, she states that the best outcome for Miss OBD would be a procedure that would retain her ovarian function whilst achieving amenorrhoea.
4. In her letter dated 4 December 2015 Dr Y states that: 1. Miss OBD's carer was of the view that Miss OBD's mood was significantly worse with the Implanon in place and therefore it was removed with a significant improvement in her mood. 2. Miss OBD's carer was of the view that Miss OBD would not be compliant with the oral contraceptive pill. 3. Given Miss OBD's adverse reaction to the Implanon she was of the view that Depo Provera was not appropriate for her because it was essentially the same medication as was delivered via the Implanon.
5. In a letter dated 15 December 2015 addressed to Mr Gardner, Dr Z, a consultant psychiatrist, expresses the view that as Miss OBD is currently compliant with medication there is no reason to assume she would not be compliant with the oral contraceptive regime.
6. During the hearing, Dr DEJ said that Miss OBD is currently taking anticonvulsant medication and antibiotics and in his opinion if a carer gave her oral contraceptive there is no reason to think she would not take it.
7. However, Dr DEJ said that taking into account Miss OBD's adverse reaction to the Implanon and Dr Y's concerns about the probable effect of Depo Provera he was of the view that an oral contraceptive would not be the preferred treatment.

Are there any risks associated with the proposed treatment?

1. In the application, Dr DEJ states that the risk associated with the treatment are the risks of a general anaesthetic.
2. In her letter dated 12 June 2015, Dr Y states that the procedure is minor and takes place in a day surgery under a general anaesthetic. It takes only a few minutes and the patient can return home, perhaps with some mild cramping for 24 hours and a vaginal discharge for some four to six weeks.

Is the proposed treatment the most appropriate treatment?

1. The Tribunal was satisfied on the basis of Dr Y's evidence as set out in the preceding sections of these Reasons, that the alternative treatments using Implanon and Mirena Levengestoral have been unsuccessful and that Depo Provera is not an appropriate treatment because its side effects would be similar to those of the Implanon. The Tribunal also accepts Dr DEJ's view that for the same reason, use of the contraceptive pill might not be the most appropriate form of treatment.
2. In her letter dated 7 July 2015, Dr Y states that the best outcome for Miss OBD would be a procedure that would retain her ovarian function whilst achieving amenorrhoea. The Tribunal accepts the evidence of Dr Y and for this reason is of the view that other procedures that would not achieve that outcome are not appropriate alternatives.
3. Taking these matters into consideration the Tribunal is satisfied that the proposed treatment is the most appropriate treatment to achieve amenorrhoea for Miss OBD.
4. As noted above, during the hearing Dr DEJ said that in his view another reason for the treatment was to prevent Miss OBD from becoming pregnant. Apart from Dr DEJ's comment the Tribunal had no evidence regarding the use of the treatment to prevent pregnancy or about the likelihood of pregnancy for Miss OBD or the risks if she were to become pregnant or the appropriateness of any other treatments for that purpose. The Tribunal was not able to reach a finding that the treatment was the most appropriate treatment to prevent Miss OBD from becoming pregnant.

How will the proposed treatment promote and maintain the patient's health and well-being?

1. In her letter dated 19 February 2015 addressed to Dr X, Dr Y speaks of Miss OBD becoming distressed about her symptoms of menstruation and punching walls as a result.
2. In her letter of 12 June 2015 to the Tribunal Dr Y: 1. describes Miss OBD as having irregular menstrual bleeding which varies from heavy bleeding over time spans varying from a few days to a few weeks; 2. states that Miss OBD seems to have premenstrual migraines as well as cramps and bloating associate with menstruation.
3. Taking into account the descriptions of Miss OBD's menstruation symptoms and also taking into account her severe intellectual disability, the Tribunal is satisfied that preventing Miss OBD from menstruating would promote her well-being if it were able to be done in way that did not interfere with her ovarian function.

Is the proposed treatment necessary to save the patient's life or prevent serious damage to health?

1. There was no suggestion put that the proposed treatment is necessary to save Miss OBD's life.
2. Mr Gardner referred the Tribunal to the matter of JLS v JES. That case dealt with an application to the Supreme Court of NSW under s 20B of the (then) Children (Care and Protection) Act for consent to special medical treatment, being a hysterectomy. 1. In the matter of JLS v JES, the evidence was that the 14-year-old girl who was the recipient of the proposed treatment: "had had two menstrual periods which were both severely heavy and associated with extreme terror and frantic response on her part and that Primolut N had been prescribed to counteract severe menstrual loss. 1. In that matter the court said that: … a Consultant Obstetrician and Gynaecologist…reported on having been given a history that at the age of 12 her menstrual periods commenced in March 1994 and that she was experiencing extremely heavy and prolonged bleeding with each cycle. The first period lasted six days and the second period commenced 19 days after expiration of the first. "Menstrual cycles have been catastrophic with the need to change pads hourly." He reported that she bled for up to 7 days consecutively. 1. The consultant obstetrician and gynaecologist also wrote that : "continued prolonged and heavy menstruation could result in hemorrhage and ultimately in anomaeia (sic) due to iron and folic acid deficiency, itself requiring treatment and in the extreme case hospitalisation for blood transfusion. There would be psychological distress, illustrated by the child's reaction during menstruation narrated by the plaintiff. [Dr GBW] said "It is my opinion that the symptoms displayed ... during periods of menstruation result in an emotional crisis in her life which puts her more at risk in hurting herself and making it more difficult for (her mother) being her sole provider and carer, to properly care for her. It also in my opinion reduces her already severely limited ability to cope with what is to her an inexplicable experience."
3. Mr Gardner asked Dr DEJ if Miss OBD was subject to the same risk of anaemia as described in the matter of JLS v JES. In response, Dr DEJ said that some women develop low haemoglobin associated with excess menstrual bleeding. However, blood counts taken in 2012 and 2013 had not indicated that Miss OBD had anaemia. If Miss OBD did develop anaemia, that condition could be adequately treated using iron tablets.
4. Dr DEJ also said that: 1. The unpredictability of Miss OBD's period causes issues for her hygiene, but there is a daily need for carers to attend to Miss OBD's hygiene so this was not a serious risk to her health. 2. In his opinion the proposed treatment would improve Miss OBD's quality of life but as a treatment to prevent her from menstruating, it is not necessary to save her life or to prevent serious damage to her health.
5. As outlined in preceding sections of these Reasons, in her letters, Dr Y refers to matters such as the length and irregularity of Miss OBD's menstruation and her reactions to menstruation as well as possible effects on her mood. However, she does not squarely address the issue of whether or not the treatment is necessary to prevent serious of risk of harm.
6. In a report to the Tribunal dated 15 December 2015, Dr Z provides information and opinion to the following effect: 1. He had analysed charts of Miss OBD's mood and behaviour from 1 August 2015 to 30 November 2015 both at her group home and at her parents' home and also charting her menstrual flow. Her menstrual flow was erratic with a lot of spotting. 2. The data indicated that Miss OBD is frequently in low levels of agitation, which may involve "the occasional slap, frowning, being uncooperative or taking herself to her room. For this entire period she has in fact been remarkably settled apart from the first half of September when a number of episodes of severe distress involving aggression to self or others was recorded". 3. At no stage was there any clear correlation with her menstruation. 4. In October, she was more unsettled in the last ten days of the month with menstruation occurring in the last five days, but that was the only time when there was a possible association. Most of the agitation occurred in the five days leading up to menstruation and the proposed endometrial ablation would not address any pre-menstrual syndrome that might be operating. 5. In his opinion, there is insufficient evidence to draw a valid link between Miss OBD's menstrual cycle and disturbances in mood and behaviours that appear to be randomly distributed across the month. 6. He cannot support the application to perform the endometrial ablation.
7. Whilst the Tribunal is satisfied that Miss OBD's quality of life would be improved if the proposed procedure were carried out, it is required by s 45(2) of the Guardianship Act to be satisfied that the treatment is necessary to save her life or to prevent serious damage to her health. In considering the evidence provided, the Tribunal cannot be satisfied that the treatment is necessary either to save the life of Miss OBD or to prevent serious damage to her health.
8. Having reached the decisions outlined in the preceding paragraph, the Tribunal refused consent to the proposed procedure.

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: 17 May 2017