C v W

Brief Procedural Background

1. Having conducted an urgent hearing on Saturday 14 May, I formed the view that Fay lacked the requisite capacity to understand and evaluate her condition and hence the recommendations made. I gave an ex tempore judgment late on the evening of 14 May 2016, when Fay's condition worsened, allowing the intervention. I indicated I would publish my detailed reasons at a later time. I note that I made an order at the hearing of these proceedings that the identities of the Hospital and medical practitioners involved would not be identified but would be referred to by their specialities and accordingly in discussing their evidence below I have referred to them by their expertise.
2. I should observe in passing that in my view NCAT erred by presumably finding that Fay had the requisite capacity to refuse treatment. I say presumably because no reasons appear to have been given by NCAT but they rejected an application by the plaintiff for permission to intervene.
3. In proceedings in this Court by way of amended summons, declaratory relief was sought to the effect that Fay was incapable of understanding the general nature and effect of the proposed treatment and incapable of giving consent to the carrying out of the medical treatment.
4. The amended summons also sought an order that the applicant be given leave to appeal an order of NCAT of 12 May 2016 and that that order be quashed or set aside and/or another decision substituted for it.
5. A further declaration was sought pursuant to the Court's parens patriae jurisdiction so that the medical practitioners at the Hospital could lawfully carry out the medical treatment proposed in the application to NCAT. I effectively granted this order on Saturday evening.
6. On 10 May 2016 the plaintiff had initially sought an Application for Special Treatment from NCAT which would have permitted the relevant procedure to be undertaken. That application was dismissed on 12 May by NCAT.
7. NCAT had before it the Application together with supporting documentation which included amongst other things materials from the treating obstetrician and nephrologist and a report of a staff specialist psychiatrist.
8. NCAT conducted a telephone conference on the evening of 11 May 2016 which involved the members of NCAT (comprising Mr Bill Tearle, Dr Brenda McPhee and Ms Marcel Williams) communicating with various persons at the Hospital including Fay and her mother, the treating obstetrician, the nephrologist and a hospital administrator. It appears that during the telephone conference the nephrologist informed NCAT that in his opinion it was highly likely that Fay's condition would seriously deteriorate in the next 7 days and that it could deteriorate at any time. He also expressed the view that risks were increasing as time passed.
9. A member of NCAT decided to speak to Fay and had the following conversation with her over the telephone: Member: Do you understand the medical treatment that is being proposed? Fay: They want to take away my baby Member: Do you want that? Fay: No
10. Upon being asked further questions by NCAT, Fay handed the telephone back and started crying, after which point the telephone conference was terminated.
11. NCAT thereafter on 12 May 2016 dismissed the application and made orders accordingly. The effect of the decision is that NCAT did not consider Fay to be incapable of giving consent to the carrying out of the recommended medical treatment. For any number of reasons which I will later develop that decision was erroneous and manifestly so.
12. Application was formally made on Saturday at the commencement of these proceedings for leave pursuant to pt 6 and sch 6 of the Civil and Administrative Tribunal Act 2013 (NSW), in particular cl 14(3)(a) and (b), for an order that leave be granted to conduct a rehearing and call fresh evidence. Given that the evidence before the Court was to be amplified considerably, not only by written material but importantly a proposed hearing at the Hospital, I was of the view that the Court should deal with the Appeal by way of a new hearing and permit the reception of that fresh evidence.

Parens Patriae

1. The plaintiff seeks to invoke the Court's parens patriae jurisdiction.
2. It is appropriate that I observe that the parens patriae jurisdiction is ancient, wide-ranging and far-reaching. It extends as far as necessary for the protection of children and those persons who from their legal disability cannot look after themselves and are in need of protection: Marion's Case (1992) 175 CLR 218, 258-9 (Mason CJ, Dawson, Toohey and Gaudron JJ) 278-80 (Brennan J). The jurisdiction requires and obliges the Court to act in the manner of a wise, affectionate and careful parent for the welfare of the person: R v Gyngall (1893) 2 QB 232 at 241 (Lord Esher MR); Marion's Case at 280 (Brennan J).
3. The jurisdiction's focus is essentially protective in nature. In exercising the jurisdiction the Court's concern is predominantly the welfare of the person involved: Re Frances and Benny [2005] NSWSC 1207 at [17] per Young CJ in Eq.
4. The jurisdiction is not encumbered with technicalities. No jurisdictional limits have been described and, subject to the requisite nexus to the child or incapable person, it is seemingly unlimited. The situations in which the jurisdictions can be invoked are myriad. Whilst broad, it is generally to be exercised only in exceptional cases and with considerable caution. In the case of an adult, this caution is especially important because care should always be taken to ensure that there is no interference unlawfully in the free will of a capable individual.
5. As McDougall J pointed out in Hunter and New England Area Health Service v A by his tutor T (2009) 74 NSWLR 88 at 90, [5], the common law recognises two relevant but in some cases conflicting interests - on the one hand a competent adult's right of autonomy or self-determination, and on the other hand the interest of the State in protecting and preserving the lives and health of its citizens. These views have been applied and approved: See Justins v R [2010] NSWCCA 242; 79 NSWLR 544 at 602-604; [357]-[360], Re JS [2014] NSWSC 302 at [6]-[9]. See also X v The Sydney Children's Hospitals Network [2013] NSWCA 320.
6. That conflict is of course a well-recognised phenomenon: Re T (Adult: Refusal of Treatment) [1993] Fam 95 at 112 per Lord Donaldson of Lymington MR). As the Court of Appeal in that case made clear, even a decision by a capable adult lacking any apparent justification must be respected. Lord Donaldson remarked "the patient's right of choice exists whether the reasons for making that choice are rational, irrational, unknown or even non-existent" (at 113).
7. However as McDougall J also pointed out in Hunter at [15], the lack of any discernible basis for a decision to refuse treatment may be something to take into account in assessing the competence of that decision.
8. Generally whenever there is a conflict between a capable adult's exercise of the right of self-determination and the State's interest in the preservation of life the right of the individual must prevail: Hunter at [17].
9. Exceptions may however arise as Lord Donaldson points out in Re T (at 102) in a case where the choice may lead to the death of a viable foetus. If both mother and child can be saved against a mother's opposition the choice of intervention may be clear.

Relationship with Guardianship Act and NCAT

1. As noted by Lindsay J in C v W [2015] NSWSC 1174 at [90], the provisions of the Guardianship Act 1987 (NSW) are "purposive" and may be seen as a "statutory expression" of the Court's parens patriae jurisdiction. Those provisions however do not oust or displace the Court's inherent parens patriae jurisdiction(see e.g. S v S [2001] NSWSC 146 at [10]-[11]; Director General New South Wales Department of Community Services v Y [1999] NSWSC 644 at [88]ff; c.f. Gardner; re BWV [2003] VSC 173 at [99]).
2. On the other hand, it is relevant that the Civil and Administrative Tribunal Act limits appeals to this Court from a decision (apart from an interlocutory decision) of the Guardianship Division of NCAT to questions of law or with the leave of the court "on any other grounds" (sch 6, cl 14(1)(b)). Pursuant to cl 14(3)(a) and (b), this Court can decide to deal with an appeal by way of a new hearing if warranted and permit fresh or evidence in addition or substitution for evidence received at first instance.
3. While a grant of leave to allow a merits review of an NCAT decision does not depend on there first being an appeal on a question of law (Lloyd v Veterinary Surgeons Investigating Committee (2005) 65 NSWLR 245 at 257, [61], per Tobias JA), as Lindsay J remarked in C v W at [44], if leave is to be granted pursuant to cl 14(1)(b) on a ground other than a question of law, "the Court generally needs to be satisfied that there is a question of principle or policy, or a manifest error in the decision-making process under review which merits a grant of leave".
4. Similarly, it has been said that the Court will not defeat the statutory scheme by simply invoking the parens patriae jurisdiction where a person is dissatisfied with a decision of NCAT except in exceptional cases: Re B (No 1) [2011] NSWSC 1075 at [59].
5. As I have previously indicated I granted (with no opposition) leave to appeal by way of rehearing and the reception of fresh evidence. There were a number of factors which in my view appropriately lead to a grant of leave. There was a good deal of fresh evidence because Fay's condition was naturally being monitored and as it turned out was deteriorating. In such circumstances, I am also of the view that it would be appropriate for this Court to invoke its inherent parens patriae jurisdiction.

The Question of Capacity

1. This case as I have already said turns on whether Fay had the requisite capacity to exercise her undoubted right of self-determination. A relevantly capable individual can consent to any medical treatment rendering its administration lawful. Otherwise, the individual's right to bodily integrity is protected by torts law: See: R Hardcastle, Law and the Human Body: Property Rights, Ownership and Control (Hart 2007).
2. An adult is presumed to have the capacity to consent to or refuse medical treatment unless or until that presumption is rebutted: Hunter at [23].
3. As McDougall J observes in Hunter at [24], there is a scale or spectrum of capacity. The nature of the decision and its importance are both highly relevant to any decision-making process and an assessment of capacity.
4. If a person is unable to comprehend and/or retain information which is material to the relevant decision, in particular the consequences of the decision, or the person is unable to use and weigh the information as part of the process of making the decision, then generally the person will be seen as incapable of exercising their right of self-determination.
5. B Collier, C Coyne and K Sullivan in their work Mental Capacity: Powers of Attorney and Advance Health Directives (Federation Press 2005 at 74 - 75) express the view that the capacity needed to refuse a particular treatment may well differ from that needed to consent to it. The authors suggest that this may be particularly so where refusal involves a high risk and a low benefit but the risks of treatment are low with a high probability of benefit. However in a complex case like the present the distinction may well be difficult to discern.
6. Notwithstanding that an adult appears to consent to a course the usual presumption can be rebutted if a decision has been obtained by duress or undue influence. There obviously may be other theoretical bases not relevant here which would vitiate an apparent consent: see Hunter at [27]-[30].
7. Lord Donaldson in Re T (at 113E) discussed the question of influence of a third party upon a capable adult making a decision. His Lordship unsurprisingly envisaged that a person was entitled to receive advice and assistance from others in reaching a decision especially from family members. Even strong opinions that are designed to persuade a person to make a particular decision will not be objectionable "so long as it did not overbear the independence of the patient's decision" (Re T at 113F). Lord Donaldson expressed the view that the real question was whether in the circumstances the person meant what he said as opposed to saying something to satisfy or placate third parties such that the "decision" would be seen as one in form and not in reality.
8. His Lordship said (at 113 H): When considering the effect of outside influences two aspects can be of crucial importance. First, the strength of the will of the patient. One who is very tired, in pain or depressed will be much less able to resist having his will overborne than one who is rested, free from pain and cheerful. Second, the relationship of the "persuader" to the patient may be of crucial importance. The influence of parents on their children or of one spouse on the other can be, but is by no means necessarily, much stronger than would be the case in other relationships.
9. In the same case Butler-Sloss LJ who was of a similar view to Lord Donaldson acknowledged undue influence could be subtle, insidious and pervasive. Her Ladyship remarked that an influence could be most potent when exercised between close relatives especially where one may be in a dominant position vis-à-vis the other.

The Guardianship Act and NCAT

1. Counsel for the plaintiff referred me to the decision in Hunter and also ss 32(2)(a) and 44 of the Guardianship Act and submitted that the test in the legislation was in substance the same as that articulated by McDougall J and the general law.
2. Counsel further accepted that "special treatment" within s 33(1) of the Act would be the only or most appropriate way of treating the patient and must be manifestly in the best interests of the patient (ss 45(3) and 44(2)). Guardianship Regulation 2010 (NSW) r 9 provides that special treatment for the purposes of s 33(1) includes "any treatment that is carried out for the purpose of terminating pregnancy".
3. It was submitted that NCAT got no further than understanding from Fay that she did not wish to have a termination of her pregnancy. It did not hear from her as to whether she really understood her condition and the consequences of refusing the treatment. It is also clear that NCAT either ignored or rejected the uncontroversial opinion of the psychiatrist that Fay did not understand her situation and this was against the background of a young woman who suffered with an intellectual disability and who was largely if not wholly dependent upon her mother.
4. It was submitted that NCAT simply failed to assess or address the dynamic of the relationship of mother and daughter. In particular, it was submitted that Fay's mother was the interface between her and the medical practitioners and that the difficulties that this had caused were squarely addressed by the psychiatrist.
5. The plaintiff submits both in general and in particular that all other relevant provisions of the Act applied to Fay. In determining that Fay was not a person to whom Part 5 of the Act applied pursuant to s 34(1)(b), NCAT fell into error. Her disability was such that it should have been found she was incapable of making the relevant decision pursuant to s 33(2)(a).
6. On the facts of this case neither counsel for Fay's mother nor Fay's separate representative could in fairness resist these propositions at least with any vigour.

Fay and her Mother

1. I convened a hearing at Fay's bedside on Saturday morning 14 May 2016. She appeared as a young woman of slight build. She made very little, if any, contribution at any time to the proceedings. For much of the time she kept her eyes closed as if she was asleep. Clearly she was not, although I accept she was obviously significantly and unsurprisingly distressed. It was difficult if not impossible to induce her to speak. I arranged for this session, the concluding session and the session with medical practitioners to be recorded and audio files exist which set out what various people said. Fay did have a private discussion with her solicitor from Legal Aid which is set out in greater detail later in this judgment. As a result of that evidence given by that solicitor and because it was felt Fay could not give adequate instructions I appointed the solicitor Ms McMullen and her counsel Ms Neville separate representatives under s 45(4)(c) of the Civil and Administrative Tribunal Act (T2).
2. Fay's mother was also unsurprisingly distressed but exceedingly voluble and it was obvious she held very strong views. The transcript of her contribution speaks for itself. She was vehemently opposed to any form of intervention except in what might be described as dire circumstances. At all times in the hearing she purported to speak on behalf of Fay indicating that Fay had strongly held views as well opposing intervention and that Fay understood all of the relevant risks that might manifest. I was never able to feel any degree of satisfaction that Fay held or could have come to such a view.
3. It is clear not only on the history obtained by the staff specialist psychiatrist, whose evidence I shall come to shortly, but on my observations as well that Fay's mother has played a very significant if not dominant role in Fay's upbringing and ongoing care. Mr Moore of counsel who appeared for Fay's mother asked her a series of questions about her understanding of treatment options and risks. She affirmatively indicated that she understood them fully and they had been explained to Fay. She stated firmly that Fay realised the significance of stroke and death and she made references to members of her family who had suffered a stroke or death so as to indicate that Fay was prepared to accept those consequences as likely outcomes.
4. The manner and tone however in which Fay's mother gave her evidence led me to have grave concerns that even she really understood the significance of the likely risks that might confront her daughter. She was concerned that Fay's son not be disappointed in the apparent promise that his mother would be bringing a little brother home from hospital. She had, I consider, little if any insight into the possible consequence if Fay might suffer a stroke causing her some disability, physical or intellectual, and how that might impact on Fay's ability to parent. Although I am sure Fay's mother meant well and believed what she said was in Fay's best interests, her somewhat domineering, overly protective attitude had the potential to obstruct medical practitioners from attempting to make an objective assessment of Fay's capacity to understand the significance of her dilemma.
5. Fay's lack of response and her unwillingness or inability to say anything at all at least during the hearing lead me to infer that she really did not understand the dilemma she faced. I have little doubt that she and her mother have discussed matters or rather more accurately her mother has spoken to Fay about these issues. I had grave doubts that Fay really had or had been perhaps allowed to have her own views on the matter. Indeed she and her mother signing a consent effectively indicating that Fay would only entertain intervention if dire consequences in fact occurred in all of the circumstances fortifies my view that Fay had no real ability to make a rational evaluation of the likelihood of risks.
6. One of the most insightful pieces of evidence in the case was the exchange between Fay and Ms Dana McMullen, solicitor. Ms McMullen had originally been retained to act on behalf of Fay and indicated after a conference with her that she was simply unable to obtain instructions and both she and Ms Neville of counsel sought to be appointed separate representatives. I acceded to that request. Because in my mind it is a crucial insight into what I regard as Fay's lack of understanding I set out in full from the transcript the evidence Ms McMullen gave: Q. Ms McMullen, are you able to just go through now the conversation that you had with Fay, doing your best to use the words used by each of you as the conversation progressed? A. Yes. I introduced myself to Fay as Dana. I explained to her that I was a lawyer, and that I had been asked to come and speak with her to try to understand what she wanted to have happen to her. I asked her if she knew where she was. She said yes, she was at the [redacted] Hospital. I asked her if she knew why she was at the hospital. She said: Yes, my kidneys. I asked her if she knew what was wrong with her kidneys. She said: There is a tear in my kidney. I asked her if there was anything else the doctors were worried about. She said: I don't know. I said: I know that you are pregnant. Do you know if the doctors are worried about your baby. She said: I don't know. I said: Do you know why the lawyers are here. She said: I don't know. I said: Do you know why the judge is here. She said: No. I explained to her that the Court was very worried that the right decisions were made for her, and that is why the lawyers and the judge had come to talk to her in hospital, to try to understand what she knew about what was happening for her. I asked her if she had heard any of the doctors say that she might have a stroke. She said: Yes. I said: Do you know what a stroke means. She said: Yes. I said: Can you tell me what a stroke means. She said: My aunty had one. I said: And what does that tell you about what a stroke means. She said: I don't know. I said: Do you know the doctors are worried that you might die. She said: Yes. I said: Do you know that the doctors are worried that you might bleed inside. She said: Yes. I said: And if these things happen, you might not be able to get better. Do you understand that. She said: Yes. I said: Now that I have explained that to you, can you now tell me what the doctors are worried about. She said she didn't know. She couldn't explain it to me. I said to her that if her baby was born today, it would not live. She said: Okay. I said: If you wait a few weeks, it might live, but no‑one is sure. She said: Okay. I said: Can you explain what I have just told you back to me. She said: No. I said: The doctors think that it is best that you don't keep your baby because if you do bad things might happen to your health and you can't get better. She said: Okay. I said: The doctors don't want you to keep your baby. Can you tell me what you think. She started to cry and asked for her mother to come in the room. I said to her that I could wait if she wanted to tell me. She continued to cry. I said: Do you want the chance to tell me what you want, or would you like me to leave. She said: I want my mother. I thanked her for her time and left. Q. Approximately how long did that conversation between you and Fay take? A. My best guess is about five minutes.
7. Many of the poignant answers in my view betray a real lack of understanding on Fay's part as to the very difficult decision-making process which sadly confronted her. It also confirms the rather dominant position of her mother.

Overview

1. Leaving the psychiatric evidence to one side for one moment, the other evidence is that of obstetricians and nephrologists. This evidence was not controversial.
2. Each report in various ways portray a young woman who was in serious need of medical intervention in order to enable the control of her blood pressure so as to avoid one or other of the serious consequences outlined.

Obstetrician

1. The treating obstetrician is a specialist obstetrician employed at the Hospital. In the application to NCAT, the obstetrician expressed certain views having recounted a history which he had obtained directly or indirectly from Fay and others. He expressed the view that Fay suffered with reflux nephropathy with renal failure since "teenage years". He also expressed the view that she had renal failure with hypertension which had progressed over the last 4 weeks. He noted that she was then at 21 weeks gestation and was requiring haemodialysis six times a week as an inpatient. He noted that there was a large retroplacental haemorrhage which was stable. He also noted the foetus appeared to be growing normally.
2. The obstetrician noted that her hypertension was requiring six anti-hypertensive agents at "high dosage". She had required three admissions to ICU and on one occasion required intravenous medication to control her blood pressure.
3. He expressed concern in the application that she was at risk of eclamptic seizures, cerebral haemorrhage or stroke with the possibility of death if the pregnancy continued. He further expressed the view that for the foetus to survive it would have to reach a minimum of 24 weeks gestation and be appropriately grown. He expressed the view that continuing the treatment would likely be futile but would carry a risk to the mother of a serious permanent injury. He was also concerned that a continuation of the pregnancy would leave no further options of blood pressure control. He expressed the view that use of long term intravenous agents was not feasible and that in his view her clinical situation would rapidly become worse. A termination would arrest the process of pre-eclampsia over days. The option of a renal transplant would then have to be considered if she were to consider any future pregnancy.
4. In addition the obstetrician prepared a report of 13 May 2016. In that he noted that an obstetric ultrasound conducted on the day of his report showed that foetal growth had slowed at least over a one week interval. The umbilical arterial flow was still normal as was the amniotic fluid. The retro-placental haemorrhage was still stable.
5. In his report he expressed the view that the prospects of getting to viability (that is at least 24 weeks gestation) without serious health risks were very small.
6. During the hearing at the Hospital he reiterated these views.

Nephrologist

1. The nephrologist has worked at the Hospital for over 30 years. His PhD topic was pre-eclampsia and he has helped lead the medical treatment management of persons with this difficulty since the 1980s.
2. He indicated in his report which was undated (but was received after the NCAT hearing) and again orally before the Court that he had never clinically been in this situation before in that he had never had to prescribe so many hypertensives to a pregnant person. The usual course of action would be to deliver the baby before this type of treatment occurred. He corroborated the obstetrician's view that there were serious and real risks of complication and he set out the estimate of the likelihood of various complications as follows: Death 10% Fetal death 10-30% Worsening of kidney function 30% & need for permanent dialysis or transplant Severe ante partum haemorrhage 30% CVA/Cerebral haemorrhage 10% Acute pulmonary oedema 20% Liver dysfunction 80% Liver failure 5%
3. He expressed the view that some of these risks could occur at any time and some without warning as I understood him.

Psychiatrist

1. The psychiatrist is a staff specialist psychiatrist. She prepared a report dated 9 May 2016 which was available to NCAT. She saw Fay twice, once on 6 May and again on 9 May.
2. She was told about Fay's intellectual disability by Fay's mother. She was told Fay required special classes in years 7 and 8. She left school during her first pregnancy. Fay according to her mother has limited reading and writing abilities and is unable to manage her finances, hence her mother undertakes that function for her. She can apparently recite the months of the year, but she cannot identify the precise current month. Fay's mother told the psychiatrist however that Fay was firmly and philosophically opposed to any termination.
3. The psychiatrist was given further history of the tragic death of Fay's brother as a little boy and further that Fay's son was expecting a baby brother to come home from hospital and that it would be difficult she thought for Fay to face him without a baby.
4. The psychiatrist recorded that she was unable to engage Fay in any discussion. Fay's mother indicated that Fay was tired and wanted to sleep. The psychiatrist however persisted at which point Fay became tearful and the conference was terminated.
5. The psychiatrist returned on 9 May. The psychiatrist asked a series of questions which were generally responded to by one word answers as she described it. At times Fay's mother answered for her. The psychiatrist formed the view that Fay was not able to demonstrate that she understood the medical condition and various treatment choices. The psychiatrist was also of the view that Fay was not able to weigh up the various choices. The psychiatrist stressed her uncertainty that Fay's current apparent decision was indeed truly hers. The psychiatrist expressed the view that Fay did not have capacity to refuse or consent to a termination of pregnancy.

Maternal foetal medicine specialist

1. A staff specialist in maternal foetal medicine prepared a report dated 13 May 2016. The specialist expressed the view that an ultrasound on 13 May showed growth restriction and minimal foetal growth. The specialist further expressed the view that Fay had pre-eclampsia superimposed on chronic renal impairment and that her blood pressure was severe and placed her at a high risk of stroke. In addition, notwithstanding multiple medications, in the specialist's view her blood pressure remained "not well controlled" and was likely to worsen whilst she remained pregnant. The specialist was of the view that if she were to have a stroke it may lead to death or severe long term disability. The specialist also expressed the view that the foetus was not viable due to the period of gestation and size. In the specialist's view it was unlikely that it would reach a gestation and size that it would ever be viable due to growth restrictions. The specialist further expressed the view that cessation of the pregnancy was likely to lead to significant improvement in Fay's blood pressure and that intervention may well have the effect of saving Fay's life.

Professor

1. A report dated 13 May 2016 was prepared by a Professor who is a nephrologist at another hospital. The Professor has practised obstetric medicine since 1987.
2. The Professor saw Fay and took a history from her to the effect that she progressed through primary school with learning difficulties and left in year 9. She had never worked. She told the Professor that the first pregnancy was traumatic as it had reportedly resulted from a rape.
3. The Professor identified the major risks to Fay as a very definite risk of stroke and/or seizures and less likely possible death. The episodes of raised blood pressure are in the range known to be associated with stroke. The Professor expressed the view that International guidelines recommended delivery should occur when it is not possible to control blood pressure with several oral anti-hypertensives. The Professor also expressed the view that it was unlikely the baby would survive to 24 weeks but would defer to the treating obstetrician. The Professor pressed the view that further episodes of severe hypertension are an indication for delivery on the grounds of maternal safety.

Additional psychiatrist

1. An additional practising psychiatrist visited Fay and prepared a report dated 14 May 2016. During the consultation Fay's mother gave him a history and made some comments which are recorded in his report. The psychiatrist attempted to rouse Fay but she kept her eyes tightly closed making a noise which indicated to the psychiatrist that she was annoyed. The psychiatrist observed that Fay's mother answered questions which were in fact addressed to Fay. The psychiatrist asked Fay's mother to step outside but she refused to leave. Some aspects of the encounter which are set out in his report of 14 May are disputed by Fay's mother. It is unnecessary to resolve any of these disputes. However the psychiatrist observed that Fay indicated on several occasions that she wanted to keep the baby and when asked questions about her health she burst into tears. The psychiatrist said he was unable to establish to his satisfaction Fay's capacity to understand the effect and nature of the treatment and suggested a further examination without her mother present in an attempt to advance the matter.

Consideration

1. As I have said the medical evidence was uncontroversial. Her condition had deteriorated and had become extremely serious on Saturday evening 14 May notwithstanding additional intravenous antihypertensive medication at high dosage. All relevant specialists were gravely concerned that there was a real and significant risk of any number of untoward repercussions likely to occur if intervention was unduly delayed.
2. I decided having visited her late on Saturday evening it was appropriate I announce my decision ex tempore rather than wait until the following day.
3. I was satisfied on the evidence Fay did not adequately understand nor was capable of balancing or making an informed decision such as to permit her to refuse the treatment recommended.
4. At the earlier bedside hearing conducted on 14 May, she was in effect uncommunicative. Either she was unable or unwilling to engage in dialogue about the various recommendations made to her. I accept that she was clearly distressed and made even more distressed by these proceedings. That said it appeared to me that there was a serious limitation in her capacity to understand what had been put to her so as to resolve her dilemma.
5. On the basis of my observations, the report of the staff specialist psychiatrist, and most importantly the discussion Fay had with Ms McMullen, there was in my view more than ample material to rebut and displace the presumption which would normally be present.
6. The influence of her mother was a most significant factor. My very distinct impression was that her mother had run her life for a very long time because Fay was simply incapable of doing it herself. That is not a criticism of her mother, whose heart was and is unquestionably in the right place. As I have clearly said, in my view however Fay's mother did not herself fully appreciate the significance of the risks faced by Fay and how that would play out if any occurred.
7. That other members of her family had experienced tragedy as a reason why Fay was able to digest and understand her particular dilemma was unconvincing. The suggestion that Fay would continue to face these risks because she did not want to disappoint her son in not bringing home a little brother was frankly unrealistic and if I may say so irrational in the scheme of things.
8. No one can fault a parent from being protective even perhaps overly protective. However in some circumstances, and this is but one example, over protection could have had dangerous consequences.
9. I was satisfied on the evidence in its totality that Fay did not in reality appreciate the true significance of the dilemma she faced. She neither had the strength nor the ability to contest the will of her mother who was well meaning, but frankly misguided.
10. These views caused me to allow intervention.
11. So far as the appeal from NCAT's dismissal of the application is concerned, on its face it seemed to me the decision of NCAT, unaccompanied by reasons, was at best cryptic and quite contrary to the medical evidence. It is fair to say in my view their attempt by telephone to understand, in a complex case, the position of Fay was wholly unsatisfactory. I appreciate time constraints and the like but this was a matter where the life of Fay or the quality of it was the subject of uncontroverted medical evidence. The principal question was whether Fay had capacity. The Tribunal's exchange via telephone did not in any adequate way explore that topic at all.
12. It was obviously accepted Fay could not continue with the telephone conference and it seems on an extraordinarily limited and ambiguous exchange NCAT concluded she had capacity to refuse treatment. This was against the staff specialist psychiatrist's report to the contrary. Without reasons there is no discernible basis upon which Fay's evidence given its content could have been determinative of the issue. Given the potential gravity of the consequences, NCAT's investigation was I consider somewhat regrettably superficial.
13. I do not know whether reasons were requested under s 62 of the Civil and Administrative Tribunal Act, but written reasons are generally to be given in matters such as the present case (sch 6, cl 11). NCAT was constituted by three members. The failure to give reasons would in my view itself be an error of law: Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWCA 112 per Bergin CJ in Eq at [48]. I should add however this precise point was not taken.
14. In addition it seems to me even if the evidence stood as it did on 12 May 2016 NCAT view fell into error. There was objectively a serious absence of evidence to sustain their finding which underpinned their order dismissing the application. Fay's mother could in reality not speak to her capacity. Indeed her mother's stance and attitude should have sounded a loud alarm. In my view there was no objective support for NCAT's finding Fay had the requisite capacity. The absence of reasons only serves to highlight in my view that NCAT's position was erroneous.

Conclusion

1. It is clear from the above that I should formally order the relief in paragraphs 2, 3, 4, 6, and 7. It seems to me there is no utility in making order 5 and I granted order 1 in the course of the proceedings.

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: 23 May 2016