C [2024] WASAT 50 (17 May 2024)

Guardianship and administration - Application for Tribunal consent for the performance of an abortion - Patient with schizophrenia - s 110ZNB - Patient under current guardianship and administration orders - Whether patient is incapable of making reasonable judgments in respect of whether or not the abortion should be performed - Presumption of capacity not rebutted - Application dismissed

Guardianship and Administration Act 1990 (WA), s 4, s 4(2), s 4(3), s 4(7), s 110ZLA, s 110ZLA(3), s 110ZLB, s 110ZLC, s 110ZNB, s 110ZNC, s 110ZNC(1), s 110ZNC(5), s 110ZND, s 110ZND(1), s 110ZND(2), s 110ZND(3)

FY [2019] WASAT 118

GKB [2020] NSWCATGD 99

Guthrie v Spence [2009] NSWCA 369

Hunter and New England Area Health Service v A [2009] NSWSC 761

NGN [2020] NSWCATGD 100

Re T (Adult: Refusal of Treatment) [1992] EWCA Civ 18; [1993] Fam 95

(These reasons were delivered ex tempore and have been edited from the transcript to correct grammatical errors or infelicity of expression).

1. Dr C[1] has applied, pursuant to s 110ZNB of the Guardianship and Administration Act 1990 (WA) (GA Act), for an order to be made by the Tribunal under s 110ZND of the GA Act to give its consent to the performance of an abortion on Ms AB (Application).
2. For the reasons which follow, the key issue on the Application is whether Ms AB is able to make reasonable judgments in respect of whether or not the abortion should be performed on her. We are satisfied that she is able to do so. That being the case, the Tribunal's consent under s 110ZND of the GA Act is not required and the Application should be dismissed.

1. Ms AB is a 34-year-old woman. She is currently pregnant and is approaching the 11th week of her pregnancy.
2. Ms AB has a longstanding history of schizophrenia and, since 2015, has had multiple hospital admissions when her condition has deteriorated, and her symptoms have increased. In addition, Ms AB has a comorbid diagnosis of polysubstance use disorder and in recent years, she has used alcohol and methamphetamine.
3. Since January 2024, Ms AB has been a patient at a hospital (Hospital) under an extended care program, receiving treatment for her schizophrenia. The evidence today revealed that following treatment in hospital, Ms AB is now much improved, so much so that she is no longer an involuntary patient under the Mental Health Act 2014 (WA) but is remaining in hospital voluntarily and continuing with her medication voluntarily.
4. When Ms AB is not in hospital, she lives in her own home and has the support of her mother, but her relationship with her mother is placed under strain at times by virtue of her mental illness.
5. Ms AB is currently the subject of orders by the Tribunal for the appointment of a guardian and an administrator. Relevantly, on 6 February 2024, Ms AB was found to be incapable of making reasonable judgments in respect of matters relating to her person, was in need of oversight, care or control in the interests of her own health and safety and was in need of a guardian. The Public Advocate (Public Advocate) was appointed as Ms AB's limited guardian with the functions of making treatment decisions and decisions in relation to the services to which she should have access.
6. Under the GA Act, a guardian, even one with the function of making treatment decisions, is unable to give consent to the performance of an abortion on a represented person.

The performance of abortions and the Tribunal's jurisdiction

1. It is a criminal offence for a health professional to perform an abortion on a person who is over 18 years of age but who is unable to make reasonable judgments in respect of whether or not an abortion should be performed on them, unless the person has made an advance health directive containing a treatment decision in respect of the performance of an abortion or the Tribunal has given its consent.[2]
2. An application to the Tribunal for a decision for the purposes of s 110ZLA(3) of the GA Act (abortion consent decision) may only be made by the person on whom the abortion is proposed to be performed, their enduring guardian or guardians, a relative (as defined in the GA Act), the Public Advocate, or a person who, in the opinion of the Tribunal, has a proper interest in the matter.
3. Other than in circumstances of urgency,[3] the Tribunal must give reasonable notice of an application for an abortion consent decision to the persons specified in s 110ZNC(1).
4. The Tribunal must have a hearing in relation to an application for an abortion consent decision.[4]
5. The Tribunal may only give consent to the performance of an abortion on a person if a number of criteria are met.[5] The Tribunal must be satisfied that:
   • (a) the person has reached 18 years of age;
   • (b) the person is unable to make reasonable judgments in respect of whether or not the abortion should be performed on them;
   • (c) the person has not made an advance health directive containing a treatment decision that is inconsistent with the performance of the abortion on the person; and
   • (d) the performance of the abortion on the person is in the best interests of that person.
6. In deciding whether the performance of an abortion on the person is in their best interests, the Tribunal must take into account (amongst any other considerations it considers relevant):[6]
   • (a) Whether the person is likely, within the foreseeable future, to regain the ability to make reasonable judgments in respect of whether or not the abortion should be performed on them; and
   • (b) Any wishes of the person so far as they can be obtained.
7. The Tribunal may give its consent to the performance of an abortion on a person subject to compliance with any condition that the Tribunal considers appropriate.[7]
8. A decision of the Tribunal in relation to the performance of an abortion on a person has effect as if it were a treatment decision made by the person in respect of the performance of the abortion on them and the person were of full legal capacity.[8]
9. The jurisdiction the Tribunal exercises under s 110ZND is its original jurisdiction.
10. In exercising that jurisdiction, the Tribunal is required to have regard to the principles set out in s 4 of the GA Act. In particular, we are mindful that the primary concern of the Tribunal is the best interests of the person in respect of whom the application is made.[9] In addition, every person is presumed to be capable of, amongst other things, making reasonable judgments in respect of matters relating to their person until the contrary is proved to the satisfaction of the Tribunal.[10] That important presumption applies in respect of every application under the GA Act, including the present application. In considering any matter relating to a person in respect of whom an application is made, the Tribunal is also required, as far as possible, to seek to ascertain the views and wishes of that person.[11]
11. As we have already noted, the key issue on the Application is whether Ms AB is able to make reasonable judgments in respect of whether or not the abortion should be performed on her.

1. Have the procedural requirements for the Application been met?

(a) Does the applicant have a proper interest in the matter so as to be entitled to apply for an abortion consent decision?

1. Dr C is a gynaecologist and obstetrician with whom Ms AB has consulted about her desire to have an abortion.
2. We understand that Dr C will be responsible for the performance of the abortion on Ms AB if consent is given for that procedure to occur.
3. In the absence of a clear answer as to whether Ms AB herself is capable of giving consent, or whether the Tribunal gives consent, Dr C could not perform the abortion on Ms AB without the risk of committing a criminal offence.
4. In our view, Dr C is clearly a person with a proper interest in bringing the Application for the abortion consent decision.

1. Notice of the hearing has been given to Ms AB, her guardian, the Public Advocate, and her mother.
2. We are satisfied that the notice required to be given under s 110ZNC(1) has been given.

(c) The evidence before the Tribunal on the Application

1. The Tribunal sought reports from Ms AB's treating doctors and social workers who have been involved in her treatment for her mental illness or in discussions with her about the proposed abortion. We received reports from Dr C; Dr J, Ms AB's consultant psychiatrist; Dr W, a psychiatric registrar at the Hospital; Ms M, a social worker at the Hospital; and Ms J, who is a social worker at the hospital where the abortion is to be performed.
2. Each of them attended the hearing and gave evidence, and we were grateful for their contributions.
3. The Tribunal also heard from Ms AB's mother and from Ms AB's guardian. We are grateful for their contributions also.
4. Finally, the Tribunal heard from Ms AB herself who conveyed her wishes to us with great clarity.
5. We deal with the evidence of all of those parties in the course of our reasons below on the question of whether Ms AB is able to make reasonable judgments in respect of whether or not the abortion should be performed on her.

2. Is Ms AB a person who is 'unable to make reasonable judgments in respect of whether or not the abortion should be performed' on her?

1. Before we consider the evidence in relation to Ms AB's ability to make such judgments, we should first address the issue of how it is that a person for whom a guardian has been appointed under the GA Act (to make treatment decisions and decisions as to services) can be a person in respect of whom the question of capacity to make a reasonable judgment in relation to whether or not to have an abortion could possibly arise. After all, in order to make such an order the Tribunal must be satisfied that the person is incapable of looking after their own health and safety, is unable to make reasonable judgments in respect of matters relating to their person and that is in need of oversight, care or control in the interests of their own health and safety.
2. Unlike some other jurisdictions, such as New South Wales, the GA Act does not include a statutory definition of what it means to have capacity to make certain kinds of decisions.
3. The Tribunal has discussed the question of what is required for decision-making capacity in relation to financial decisions in FY.[12]
4. In the context of decision-making capacity in relation to personal matters, the common law authorities provide some guidance as to what is required for a person to be able to give or refuse consent to medical treatment.
5. In Hunter and New England Area Health Service v A (Hunter),[13] the Supreme Court of New South Wales outlined the common law position as follows:

[23] There is a presumption of capacity whereby an adult is presumed to have the capacity to consent to or to refuse medical treatment unless and until that presumption is rebutted.

[24] In this context, it is necessary to bear in mind that there is no sharp dichotomy between capacity on the one hand and want of capacity on the other. There is a scale, running from capacity at one end through reduced capacity to lack of capacity at the other. 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 and the capacity required to make a contract to buy a cup of coffee may be present where the capacity to decide to give away one's fortune is not.

1. Similar sentiments were expressed by the New South Wales Court of Appeal in Guthrie v Spence.[14] In that case, Campbell JA stated:

It is well-accepted that there is no single test for capacity to perform legally valid acts and that the task-specific nature of these tests for capacity has the effect that the one person could have capacity to perform one task, but lack capacity to perform a different task.

1. We pause there to note that while Ms AB has been previously found by the Tribunal to lack the capacity to make reasonable judgments in respect of matters relating to her person, that is a broad judgment made by the Tribunal which is not directed to the specifics of particular decisions.
2. In contrast, the present case calls for analysis of what is involved in the question of capacity to make a specific decision, namely a reasonable judgment as to whether or not an abortion should be performed on a person. The question is whether Ms AB is able to make judgments of that kind as at today.
3. In short, the declaration made by the Tribunal, on which its appointment of a guardian for Ms AB was based, does not, in our view, preclude a finding by the Tribunal today, if the evidence supports that finding, that Ms AB is able to make reasonable judgments as to whether or not the abortion should be performed on her.
4. We note that a similar approach has been taken in New South Wales in cases such as NGN[15] and GKB.[16]
5. How does the Tribunal make that assessment? Again, some guidance can be gleaned from the common law approach. The New South Wales Supreme Court in Hunter discussed the common law approach to the question of capacity in medical treatment decisions and said:[17]

[25] As Butler-Sloss LJ said in Re MB, in deciding whether a person has capacity to make a particular decision, the ultimate question is whether that person suffers from some impairment or disturbance of mental functioning so as to render him or her incapable of making the decision. That will occur if the person:

(1) is unable to comprehend and retain the information which is material to the decision, in particular as to the consequences of the decision; or

(2) is unable to use and weigh the information as part of the process of making the decision.

(7) In considering the question of capacity, it is necessary to take into account both the importance of the decision and the ability of the individual to receive, retain and process information given to him or her that bears on the decision.

(11) What appears to be a valid consent given by a capable adult may be ineffective if it does not represent the independent exercise of the person's volition. If by some means the person's will has been overborne or if the decision is the result of undue influence or of some other vitiating circumstance.

1. Similarly, in Re T (Adult: Refusal of Treatment),[18] Thorpe J observed that:

the question to be decided is whether it has been established that the patient's capacity is so reduced that he does not sufficiently understand the nature, purpose and effect of the proper treatment.

1. Thorpe J went on to identify the following aspects of the decision-making process that were required to be present for a person to have the capacity to make a decision about medical treatment: the person needs to be able to comprehend and retain treatment information, they need to believe that information, and they need to be able to weigh it in the balance to make a choice.
2. Drawing on that common law approach, we consider that in order for the Tribunal to determine whether or not Ms AB is able to make reasonable judgments in respect of whether or not an abortion should be performed on her, it is necessary to consider:
   • (a) What cognitive ability - that is, reasoning process - a person is required to be able to undertake in order to make a reasonable judgment of that kind;
   • (b) What is the evidence as to Ms AB's capacity in that respect; and
   • (c) Is that evidence sufficient to displace the presumption of capacity under the GA Act to make such decisions as this one.

3. What cognitive ability - that is, reasoning process - is a person required to be able to undertake in order to make a reasonable judgment as to whether or not to have an abortion?

1. At the outset, we should say that we do not consider that a person needs to be able to demonstrate a level of sophisticated medical knowledge in order to be able to make a reasonable judgment in respect of a decision such as whether to have an abortion. We think it is sufficient if they are capable of understanding the main elements of the procedure, and its risks and consequences, rather than the technical or exact details of the treatment or its effect.
2. We heard today from Dr C whose evidence was that she had had a discussion with Ms AB that was the same kind of discussion as that which she has with all pregnant people with whom she meets to discuss their pregnancy options. She canvassed all of the options which were available to Ms AB and recounted that Ms AB was clear in that she wanted an abortion and Ms AB was able to repeat back to Dr C the risks of the procedure and her understanding of the consequences of signing the consent form for the procedure.
3. In addition, Ms AB told Dr C that she wanted a surgical abortion rather than a medical abortion (that is, taking a tablet) because she did not want to experience the pain of the medical abortion procedure. By that, we understood she was referring to the results of cramping which would occur and be experienced for a couple of days as the pregnancy was interrupted. That thinking process suggests to us that Ms AB had an appreciation of what was involved in the procedure and the pros and cons of the different options available to her. At the same time, Ms AB also requested that Dr C arrange for a long-term effective contraceptive to be made available to her. That suggests that Ms AB was able to think about, and plan, on how to avoid another pregnancy in the future.

4. The evidence as to Ms AB's capacity to make a reasonable judgment as to whether to have an abortion

1. We received evidence from Dr J and from Dr W as to Ms AB's present capacity for decision-making about personal matters. They told us that Ms AB has a diagnosis of schizophrenia which is a chronic illness. In relation to Ms AB, it manifests in delusions of a persecutory nature and hallucinations. These symptoms have been complicated by her substance abuse of alcohol and methamphetamine. Dr J explained that when Ms AB came into the Hospital, she was very unwell. At that stage she was in the care of another treatment team. As a result of the care she has received, Ms AB's mental state has improved markedly. She is no longer experiencing hallucinations or delusions and that has had an improvement in her cognitive abilities.
2. We asked Dr J and Dr W a number of questions in relation to Ms AB's ability to weigh up the pros and cons of having an abortion. It was their evidence that Ms AB had the ability to comprehend the information that she had received in relation to the decision about whether to have an abortion, that she was likely to believe that information, and understand it, that she had the ability to retain that information, and that she had the ability to weigh up that information in order to make a reasonable judgment.
3. We also asked Dr J and Dr W whether Ms AB's mental illness had influenced her views in relation to whether to have an abortion. The information before the Tribunal included evidence that was available to the Tribunal when the application for a guardianship order for Ms AB was made earlier in 2024. That information included a psychological report that indicated that Ms AB's general cognitive ability was within the borderline range of intellectual function and that her decision-making ability suggested deficits in abstract reasoning and in impulsiveness. We were particularly concerned as to whether Ms AB's expressed wish to have an abortion was a result of impulsive decision-making. Dr J and Dr W both expressed the opinion that Ms AB's wish to have an abortion was not influenced by her mental illness and that they did not attribute it to her impulsive decision-making tendencies.
4. Each of them explained to us that Ms AB has consistently expressed the view that she wishes to have an abortion. Dr W explained that he sees Ms AB every day and that her decision has freely and consistently been expressed and that it has been based on consistent reasons. In particular, it was based on her desire to avoid having a pregnancy when she did not know who the baby's father was, and did not wish to have a pregnancy without the support that she might require.
5. We also heard from Dr J and Dr W in relation to whether there had been any perception on their part of pressure on Ms AB to reach the decision to have an abortion. Their evidence was that they saw no sign of any such pressure. Dr W indicated that he considered that Ms AB was aware, in making her decision, of the need to take into account her social situation and the supports that would be available to her in continuing with the pregnancy.

1. We also heard from the social workers, Ms M and Ms J, who have had discussions with Ms AB about her wish to have an abortion. Each of them confirmed that Ms AB has received information about her options in relation to her pregnancy in a variety of contexts, including several discussions with her treating medical team. They recounted that Ms AB had clearly expressed her wish for an abortion, and her reasons, and confirmed that there had been no evidence that they had seen to suggest that Ms AB had been pressured into making that decision.
2. We also heard from Ms AB herself, and she was very clear in giving us her views that she wants to have an abortion and her reasons for wanting to have an abortion. Amongst other things, Ms AB told us that she has had two abortions before. She has clearly thought of the reasons why she wants to have an abortion. Her reasoning recognises her limited supports, her desire to have a baby only with a partner, and her preference not to carry this pregnancy to full term. If anything, her reasons suggested to us that Ms AB has taken a perfectly rational approach in deciding whether an abortion is the appropriate choice for her.

1. We turn then, in light of all of that evidence, to consider whether the evidence has been sufficient to displace the presumption that Ms AB has the capacity to make a reasonable judgment about whether to have an abortion. We accept the evidence of Dr C, Dr J and Dr W. We accept their expertise in relation to gynaecology and obstetrics, and psychiatry, respectively. We accept the evidence of the social workers in relation to their discussions with Ms AB. And we have paid particular regard to Ms AB's own expression of her wishes. Her expression of her wishes demonstrated an understanding of what would be involved in both the abortion procedure (its risks and consequences) and of the consequences of taking the pregnancy to term.
2. Having regard to all of the evidence, we are satisfied, and we find, that it is more likely than not that Ms AB has the ability to comprehend the information she has been given in relation to her pregnancy and to her choices, including as to whether to have an abortion, and to the consequences of a choice as to whether to have an abortion or not; that she accepts that information; and that her desire to have an abortion is the consequence of her weighing up that information to make her own choice. We are also satisfied, and we find, that there is no evidence that Ms AB has been pressured into expressing her desire to have an abortion.
3. Having regard to all of the evidence, we are satisfied, and we find, that it is more likely than not that Ms AB is able to make reasonable judgments in respect of whether or not the abortion should be performed on her.
4. That being the case, it is not necessary for the Tribunal to consider the criteria relevant to whether it should make the abortion consent decision. Its consent is not required.
5. In all of those circumstances, we will make an order making clear that we are satisfied that Ms AB is able to make reasonable judgments in respect of whether or not the abortion should be performed, that the consent of the Tribunal to the performance of the abortion on her is therefore not required, and that the Application will be dismissed.

The order that we propose to make is in the following terms:

1. As the Tribunal is satisfied that Ms AB is able to make reasonable judgments in respect of whether or not an abortion should be performed on her, the consent of the Tribunal to the performance of the abortion on Ms AB is not required under s 110ZND of the Guardianship and Administration Act 1990 (WA) and the application for the Tribunal's consent is therefore dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

[1] The names of all persons involved in these proceedings have been anonymised.

[2] GA Act, s 110ZLB, read with s 110ZLA.

[12] FY [2019] WASAT 118.

[13] Hunter and New England Area Health Service v A [2009] NSWSC 761.

[14] Guthrie v Spence [2009] NSWCA 369 at [175].

[15] NGN [2020] NSWCATGD 100.

[16] GKB [2020] NSWCATGD 99.

[18] Re T (Adult: Refusal of Treatment) [1992] EWCA Civ 18; [1993] Fam 95 at [295].