GRC [2016] QCAT 268 (15 July 2016)

1. The application for Consent to Special Health Care - Termination is refused.
2. The Tribunal directs that a transcript of the Tribunal's reasons be prepared and placed on the file as a matter of urgency.

GUARDIANSHIP - SPECIAL HEALTH CARE - TERMINATION OF PREGNANCY - where application for consent to special health care - termination of pregnancy - where tribunal appoints Public Guardian as representative to report on adult's views, wishes and interests - whether adult has capacity to make a decision about a special health care matter - whether termination of pregnancy is necessary to preserve the adult from serious danger to life or physical or mental health

Acts Interpretation Act 1954 (Qld), s 14A

Guardianship and Administration Act 2000 (Qld), ss 5, 6, 12, 65, 68, 71, Schedules 1, 2 and 4

Central Queensland Hospital and Health Service v Q [2016] QSC 89

R v Davidson [1969] VicRp 85; [1969] VR 667

State of Queensland v B [2009] 2 Qd R 231

OTHER ACTIVE PARTIES: SRJ and SXM, appointed guardians of GRC

[1] Member Browne: GRC is 31 years of age and has a history of schizophrenia and admissions to mental health units for treatment. She is 12 weeks' gestation into her current pregnancy. Emma Perrin, Senior Mental Health and Addictions Clinician from the Charters Towers Rehabilitation Unit has filed an application for consent for special health care termination of pregnancy.

[2] The application was received by the Tribunal on the 1st of July 2016. Following receipt of the application, directions were made by the Tribunal dated 1 July 2016, that the Public Guardian be appointed as the representative of GRC to represent her views, wishes and interests. Directions were also made dated 4 July 2016 that the applicant, Emma Perrin, provide documents including reports to be relied upon at the hearing. The Public Guardian was also directed to provide a report.

[3] The Tribunal has received material and GRC and the parties participating in the hearing today are ready to proceed. The Tribunal has also received a report from GRC's treating psychiatrist, Dr Rupak Dasgupta and the report was prepared on the 14th of July 2016.

[4] The active parties in this proceeding include GRC's guardians. Because GRC does not have the capacity to make decisions about her personal matters, this Tribunal, by order dated 16 July 2015, appointed guardians to make decisions about her accommodation, health care and provision of service matters.

[5] GRC's mother and step-father, SRJ and SXM were appointed jointly and severally as guardians and their appointment is to be reviewed in one year. This appointment was made under section 12 of the Guardianship and Administration Act 2000 (Qld) Queensland, referred to as the Act.

[6] The Tribunal will now consider the relevant law in this matter. A termination of pregnancy is defined as special health care under section 7, schedule 2 of the Act and is, for the purposes of section 6, a special health matter. Under section 65 of the Act, an adult with impaired capacity for a special health matter may only be dealt with by order of the Tribunal. Under section 68, the Tribunal may by order consent to special health care for an adult. The Tribunal may give consent for a termination of pregnancy as provided under section 71, only if certain requirements are met.

[7] For the purposes of section 71, the Tribunal must be satisfied that the adult in this case, GRC, has impaired capacity for the matter, that is the capacity, as defined under schedule of 4 of the Act, amongst others to understand the nature and effect of the decision to terminate the pregnancy.

[8] The Tribunal must be satisfied that the termination of pregnancy is necessary to preserve GRC from serious danger to her life or physical and mental health. Section 71(2) also provides that termination of an adult's pregnancy to which the Tribunal has considered for the adult is not unlawful.

[9] The issues to be determined in this matter are firstly whether GRC has capacity to make a decision about the termination of pregnancy and secondly whether there is evidence before the Tribunal that the termination is necessary to preserve GRC from serious danger to her life or physical or mental health. The words "serious danger" are not defined in the Act. The words "serious danger" for the purposes of section 71 should be interpreted in a way that will best achieve the purpose of the Act as provided under section 14A of the Acts Interpretation Act 1954 (Qld).

[10] The purpose of the Guardianship and Administration Act is to strike an appropriate balance between the right of an adult with impaired capacity to the greatest possible degree of autonomy and decision-making and the adult's right to adequate and appropriate support for decision-making, as provided under section 6. The Tribunal must, as provided in section 5 in making an order, make the least restrictive order. Section 5(d) provides that the right of an adult with impaired capacity to make decisions should be restricted and interfered with to the least possible extent. As provided in schedule 1, section 11 of the Act, an adult has the right to the same basic human rights regardless of a particular adult's capacity and must be recognised and taken into account.

[11] In Central Queensland Hospital and Health Service v Q [2016] QSC 89, Justice McMeekin considered whether a proposed termination of pregnancy for a minor was lawful. Justice McMeekin adopted the approach taken by the Supreme Court of Victoria in the decision of R v Davidson [1969] VicRp 85; [1969] VR 667. In Davidson's case, Justice Menhennitt said that in effect for the termination to be lawful, the act must be:

(a) necessary to preserve the woman from a serious danger to her life or her physical or mental health (not being merely the normal dangers of pregnancy and childbirth) which the continuation of the pregnancy would entail; and

(b) in the circumstances, not out of proportion to the danger to be averted (at 672).

[12] In Central Queensland Hospital and Health Service's case, Justice McMeekin also recognised the issues of potential criminal responsibility under section 224 of the Criminal Code 1899 (Qld), complex moral and ethical issues in a termination of pregnancy matter. He referred to a decision of Justice Wilson, as she then was, in State of Queensland v B [2009] 2 Qd R 231, that also considered termination of pregnancy for a minor. Justice Wilson said (at [6]):

There are potentially difficult issues of criminal responsibility whenever the question of terminating a pregnancy arises. There may also be complex moral, ethical and religious issues, but these are beyond the power of the Court to determine.

[13] In the case of Central Queensland Hospital and Health Services, Justice McMeekin said in adopting the approach in Davidson's case that the two conditions must be present. He found in that case that the termination of pregnancy for a minor was necessary in order to avoid danger to the minor's mental and physical health, and in being satisfied the conditions were present, found the proposed response is not out of proportion to the danger to health (at [41] to [41]). Justice McMeekin also observed that the approach in Davidson's case is the approach that has been adopted in Queensland.

[14] In relation to the words "serious" and "danger" the Tribunal has also considered the ordinary meaning as defined in the Macquarie Dictionary sixth edition. "Serious" means amongst others, "...of grave or solemn disposition or character, thoughtful...of grave aspect...weighty or important: a serious matter...giving cause for apprehension; critical...".

[15] "Danger" means amongst others, "...liability or exposure to harm or injury; risk; peril...an instance or cause of peril...". The definitions contained in the Macquarie Dictionary are useful in considering the meaning of "serious danger" for the purposes of section 71.

[16] We consider that for the purposes of section 71, there must be evidence before us that the termination of pregnancy is necessary in order to avoid danger to GRC's life or physical or mental health. The words "serious danger" in section 71 denotes something more than mere risk or concern identified, for example, by a health professional when considering GRC's physical or mental health if the pregnancy was to continue or if the termination of pregnancy was to be performed.

[17] Section 71 requires there to be evidence of serious danger to GRC's life or physical or mental health if the pregnancy was to continue and therefore consent to a termination of pregnancy should be given.

[18] The Tribunal is satisfied that the applicant and all active parties have had an opportunity to present evidence today, because directions have been made by the Tribunal directing parties to file certain material, and the parties have indicated at the oral hearing today that they are ready to proceed. The Tribunal has also heard from relevant treating health professionals, including Dr Dasgupta and has had the benefit of hearing from health professionals who have prepared and filed reports in relation to the application.

[19] In addressing the first issue of whether GRC has capacity to make the termination of pregnancy decision, capacity is something we are all presumed to have in that we are all presumed to be able to make our own decisions about our health care matters, including special health care matters. Capacity is defined under schedule 4 of the Act.

[20] The medical evidence before the Tribunal refers to a history of mental illness and indicates GRC is currently subject to an involuntary treatment order. A summary of the medical evidence in relation to GRC's capacity is as follows:

[21] There is a report of Dr Vega Janine Frittelli, treating psychiatrist dated the 10th of April 2015, who diagnosed a schizoaffective disorder, treatment-resistant since January 2003. GRC was reported to have capacity for complex personal matters.

[22] In a letter from Emma Perrin, Senior Mental Health and Addictions Clinician, dated the 14th of June 2016, GRC is reported to require a guardian as her capacity for formal decisions in relation to health and provision of services is still impaired. That letter attached copies of documents from Mental Health Services. The document evidences a pregnancy termination in 2003 and refers to GRC being an inpatient in the Mental Health Unit in Switzerland for almost one year.

[23] There is also reference to further admissions to mental health units in Cairns in 2007 and a transfer to Townsville in 2015. There is a Mental Health Review Tribunal decision dated the 19th of February 2016 that indicates that there is a current involuntary treatment order. A report of Emma Perrin, Senior Mental Health and Addictions Clinician dated the 29th of June 2016 refers to:

Diagnosis of treatment-resistant schizoaffective disorder, post-traumatic stress disorder and anxiety. GRC has a long-standing history mental illness since the age of 17. She's been on an involuntary treatment order since 17 December 2014. She's currently an inpatient at Charters Towers Rehabilitation Unit, was initially admitted on the 9th of June 2015. She's had two prior admissions to the Townsville Hospital Acute Mental Health Unit. GRC requires support to take her medications and complete activities of daily living, including showering, cooking, cleaning and has provided limited involvement in engaging with therapeutic interventions.

[24] A further report of Emma Perrin, dated the 5th of July 2016 refers to:

Diagnosed schizoaffective disorder, long-history of mental illness and schizophrenia. Medications are prescribed to assist in managing symptoms and mental illness. GRC has limited insight into her mental illness, incapacity to understand the implications of pregnancy, child birth and caring for a baby. GRC has declined contraception, despite engaging in sexual activity. GRC is reported to have no capacity for complex decisions in all areas of her life.

[25] Mental Health Service POS contact summary dated 28 June 2016, reports details of a conversation with GRC and others to discuss the QCAT application. The document reports that:

It was difficult to gather further collateral - GRC's understanding of pregnancy and risk to self and unborn foetus. GRC presents as guarded and appears to have superficial engagement.

[26] The report of Dr Ben Sketcher, Consultant Psychiatrist, dated 8 July 2016 refers to a diagnosis including schizophrenia, schizoaffective disorder, PTSD and anxiety. GRC has had several admissions in Australia and Switzerland and is currently pregnant. Dr Sketcher addresses the issue of capacity in relation to termination of pregnancy and raring the child. He reports:

Thus her understanding of the choices is sound, however her understanding of the likely consequences of the choices and her ability to rationally weigh the decision is compromised, apparently due to her mental illness. GRC lacks capacity to decide on TOP [termination of pregnancy].

[27] A report of Dr David Watson, Consultant Obstetrician and Gynaecologist, dated 13 July 2016 refers to a discussion with GRC about her pregnancy. GRC is reported to have said she in no way wants the pregnancy terminated and wants to continue the pregnancy. GRC is reported to have poor insight into her psychiatric disorder and the pregnancy.

[28] GRC attended the hearing with the support of her treating team via video conferencing today. She is able to communicate her views through speech. GRC has strong views about the application that are reflected in the medical reports and the report of the Public Guardian, dated 14 July 2016. GRC told the Tribunal at the hearing today that she does not want a termination and stated she will "get a lawyer".

[29] The Tribunal has considered the medical evidence and the information provided at the hearing. The Tribunal makes the following findings of fact about GRC's capacity [emphasis added]:

[30] GRC is a 31 year old woman with a long-standing diagnosis of schizophrenia, history of multiple admissions for treatment of her mental illness. GRC has diagnosed treatment-resistant schizoaffective disorder, post-traumatic stress disorder and anxiety. GRC is currently 12 weeks' gestation into her current pregnancy.

[31] The Tribunal accepts the recent medical opinion of Dr Ben Sketcher, Consultant Psychiatrist, who reports GRC lacks capacity to decide on termination of pregnancy. This opinion is consistent with the opinion of Dr David Watson, Consultant Obstetrician and Gynaecologist, that reports GRC has poor insight into her psychiatric disorder and the pregnancy, and the opinion of Emma Perrin, Senior Mental Health and Addictions Clinician, who reports GRC has limited insight into her mental illness and capacity to understand the implications of pregnancy, childbirth and caring for a baby.

[32] The Tribunal also acknowledges that the opinion of Dr Dasgupta expressed at the hearing today was that he agrees with the medical evidence. The Tribunal finds that GRC does not have the capacity to understand the nature and effect of a decision to terminate her pregnancy due to her diagnosed schizophrenia that impacts on her decision-making. The presumption of capacity to make a decision about a special health care matter, termination of pregnancy is rebutted.

[33] In relation to the issue as to whether there is evidence of serious danger to GRC's life or physical or mental health for the purposes of section 71, the Tribunal has considered all of the evidence, including the medical reports and the information provided at the oral hearing today. The Tribunal is not satisfied, for the purposes of section 71, that the termination is necessary to preserve GRC from serious danger to her life or physical or mental health.

[34] The medical evidence, in particular, the reports of Dr Dasgupta, Dr Watson, Dr Sketcher and Ms Perrin refer to risks and challenges for GRC if she continues with the pregnancy. There are also references to risks in relation to undergoing the termination of pregnancy procedure itself, risks in relation to continuing with the pregnancy in terms of the prescribed medication taken by GRC and possible impacts of the medication on the foetus and GRC herself due to the reduction in her medication.

[35] Dr David Watson, consultant obstetrician and gynaecologist in his recent report dated 13 July 2016, provides an opinion about the termination of pregnancy. Ms Perrin, the applicant in the proceeding, relies on the opinion of Dr Watson. Dr Watson reports, amongst others, that he will be guided by the psychiatric opinion, but he would be concerned that continuation of the pregnancy will pose significant risk to GRC's mental state with physiological and potential pathological conditions that can occur in pregnancy. Managing her pregnancy is reported to be challenging in the presence of a chronic treatment-resistant schizophrenia. Dr Watson reports, amongst others that he feels that it is reasonable to terminate the pregnancy and asked GRC what her thoughts about this were. He reported she [GRC], in no way, wants the pregnancy terminated and wants to continue the pregnancy. Dr Watson reports:

I did say to GRC that with her current level of functioning, she may not be able to look after a newborn baby, and that did not worry her and she thought that the baby could be adopted if she wasn't able to care for the baby.

[36] Dr Watson does not, however, identify any concerns or risks, that for the purposes of section 71 would either together or alone constitute a serious danger to GRC's life or physical health, and for mental health, deferred to the psychiatrist's opinion. Dr Watson reports that managing GRC's pregnancy is challenging in the presence of her chronic treatment-resistant schizophrenia. In relation to the medication prescribed by GRC's treating health professionals, Dr Watson reports that medications are classified as category B or C medication, and reports:

These medications are unlikely to cause foetal anomalies but there is limited information on some of these agents, and polypharmacy may be added risk. If the pregnancy were to continue, we would need to do a detailed anatomy assessment at 20 weeks to assess whether there are any congenital abnormalities.

[37] Dr Watson identifies risks in relation to the medical procedure, the termination or pregnancy. Dr Watson reports that up until 14 weeks, the suction curette under general anaesthetic, which is a 20 to 30 minute procedure would be performed. He reports the risks and complications of this procedure are bleeding, infection, inability to remove all of the placental tissue, requiring a second curette. These minor complications occur infrequently at a rate of 2 to 3 per cent. The only significant rare complication occurs with a rate of approximately 1 out of 1000 when the uterus is perforated during curette, for which a laparoscopy would be required to assess any injury to the pelvic organs.

[38] Dr Watson, at the oral hearing today, reported that up to 14 weeks, the surgical termination, generalised anaesthetic and curettage, that after 15 weeks there would be an induction of labour with vaginal delivery of product of conception. After 24 weeks, if mother's health required the termination of pregnancy, there would be a caesarean section delivery and after 32 weeks a vaginal induced delivery. Dr Watson reported the surgical induction was the less traumatic event, as compared to induction of labour.

[39] Dr Ben Sketcher, consultant psychiatrist, in his report dated 8 July of 2016, refers to GRC's current medications prescribed and the views of her parents and treating team to have a termination of pregnancy. Dr Sketcher reports that GRC would like to carry the pregnancy to term and raise the child.

[40] Dr Sketcher reports that identifiable and significant risks to GRC's physical and mental health of proceeding with termination of pregnancy as well as proceeding with the pregnancy. In relation to risks proceeding with the pregnancy, Dr Sketcher refers to: deterioration of GRC's mental health with consequent risks of poor mother-infant bonding, and failure to thrive; risks of perinatal psychosis amplified by any minimisation of medications effected in the interests of the foetus; risks to the foetus in a mother with physical health issues, taking medications and risk of major mental illness in a child of a parent with major mental illness.

[41] Dr Sketcher reports, amongst others, that GRC's ability to parent is unclear, so there are further risks identified. These risks concern care of the infant child and emotional harm to GRC if the child is removed from her care and risks in delivery for any woman.

[42] Dr Sketcher also identifies risks in relation to termination of pregnancy. Dr Sketcher reports risks as being grief and or possible regret, risk of intense negative, emotional and cognitive experiences is likely to be heightened if termination of pregnancy is carried out against the person's wishes, that Dr Sketcher reports as quoted, "_as is proposed in this ca_se". He also refers to risks in relation to the termination of pregnancy in terms of blood loss and infection.

[43] Ms Perrin, the applicant in the proceeding, also relies upon the medical opinion of Dr Sketcher. At the oral hearing today, Dr Sketcher acknowledged the strengths and weaknesses to both arguments in relation to continuing with the pregnancy and termination of pregnancy, but said on balance, the risks are less than he previously outlined.

[44] Emma Perrin, the applicant and clinician, also provides her opinion in reports dated 29 June 2016 and 5 July 2016. Ms Perrin relies on all of the medical evidence, including the report of Dr Dasgupta and her own reports. Ms Perrin reports that there are significant concerns about the health of the foetus and GRC's physical and mental health. The report does not, however, identify any concerns or risks that are or could be considered for the purposes of section 71 of serious danger to GRC's life, physical or mental health.

[45] Ms Perrin refers to GRC's medication and refers to risks that can impact the unborn child during pregnancy, such as birth defects. There are also risks identified to the child following birth, due to the withdrawal of medication. It is reported that GRC's mental health will decline and she will require an acute admission, which is stated, may potentially lead to GRC being psychotic throughout her pregnancy and possible detrimental impact on GRC's mental state if it is determined that a medical termination is required due to the level of risks associated with the pregnancy.

[46] There are also risks referred to in relation to GRC's smoking and the impact to the unborn child, and a question raised as to whether GRC is able to care for the child. Ms Perrin reports that:

The expressed opinion by all health staff is that termination of the pregnancy would be the preferred outcome.

[47] The Tribunal has considered Dr Dasgupta's view, expressed at the hearing. In summary, he said there was a significant risk if the pregnancy was to proceed into the third trimester, with worsening of GRC's psychosis, that may be difficult or possible to adequately control. Implications for GRC were increasing restrictions and introduction of new and significant medical interventions, i.e. ECT, (electroconvulsive therapy). This view is also reported in his report dated 14 July 2016. Dr Dasgupta, amongst others, reports:

Speculatively, as she is so psychotic in the first trimester, her mental illness is likely to turn for worse in the third with the hemodilution happening in the and the team may find it difficult to optimise medications in keeping her well enough to deliver.

[48] The Tribunal has considered all of the medical evidence and makes the following findings a fact [emphasis added] - and the Tribunal has also considered the submissions made at the hearing today and the information given.

[49] The Tribunal is not satisfied that the termination of pregnancy is necessary to preserve GRC from serious danger to her life or physical or mental health. Dr Watson, consultant obstetrician and gynaecologist, identifies challenges in managing GRC's pregnancy in the presence of her chronic treatment-resistant schizophrenia, but also identifies risks and complications in relation to the termination of pregnancy. Dr Sketcher, consultant psychiatrist, identifies risks in relation to termination of pregnancy and proceeding with the pregnancy. Some of the risks identified by Dr Sketcher in relation to proceeding with the pregnancy, such as risks of poor mother-infant bonding and failure to thrive, risk to the foetus, risks of major mental illness in a child of a parent with major mental illness are difficult to predict with any certainty. It is also difficult to predict with any certainty whether such risks would present, for the purposes of section 71, a serious danger to GRC's life, physical or mental health.

[50] Ms Perrin, clinician, identifies concerns about the health of the foetus in GRC's physical and mental health. Ms Perrin reports that the expressed opinion by all health staff is that termination of the pregnancy would be the preferred outcome. The termination of pregnancy is also supported by GRC's guardians- her mother and stepfather. As identified in the medical report of Dr Sketcher, there is also a risk of intense negative, emotional and cognitive experience, likely to be heightened if the termination of pregnancy is carried out against the person's wishes, in this case, GRC's wishes. Dr Dasgupta has reported a recent decline in GRC's functioning and increase in her psychotic ideation, but could not say with any certainty whether this was predominantly due to direct effects of the pregnancy itself.

[51] As we have said, section 71 must be interpreted in a way that will best achieve the purpose of the Act as provided under section 14A of the Acts Interpretation Act. Section 71 requires something more than risks or concerns in relation to proceeding with the pregnancy. There must be evidence before the Tribunal that there is serious harm to GRC's life, physical or mental health, that if present, requires the termination of pregnancy. The Tribunal must consider GRC's views and wishes in relation to this matter. GRC has maintained, as reflected in the reports and the Public Guardian report, that she wants to continue with the pregnancy. GRC has reported in the Public Guardian report, it is stated that she has had an abortion before in 2003 and "didn't like it". GRC is also reported as saying that she made the decision in 2003 and "fell into huge depression. That's more concerning to not fall into depression". GRC is also reported to have said that she, "Didn't want another abortion". She stated, "Don't want to kill it", and that she would, "Feel better", if she was able to, "Adopt it".

[52] The Tribunal is not satisfied that the evidence before it establishes a serious danger to GRC's life or physical or mental health if the pregnancy proceeds. As we have said, the medical evidence identifies concerns about GRC's health, including her mental health, should the pregnancy proceed, but also reflects concerns in relation to GRC's mental health if the termination of pregnancy was to proceed. There are also risks and concerns identified in relation to the unborn child or the foetus, and GRC if the pregnancy proceeds. The risks identified in relation to the foetus or unborn child alone, does not satisfy the test under section 71. There must be evidence that the termination is necessary to preserve serious danger to GRC's life or physical or mental health.

[53] In the context of this area of fertility and involuntary interventions against express wishes of the adult, particular care is expected, because the Act requires the Tribunal to strike a balance as provided in section 5. One of the factors in that balance, is the weight given to the right to an individual to decide whether she should continue with a pregnancy. If in this case, the speculative risks or concerns become more obviously manifest in the ensuing weeks, an application can be made any time on an urgent basis with supporting material.

[54] The application for consent to special health care termination is refused. So the orders will be: in relation to the application for consent for special health care termination, the application for consent to special health care termination is refused. The Tribunal directs that a transcript of the Tribunal's reasons be prepared and placed on the file as a matter of urgency. Thank you very much for your patience today. The Tribunal is mindful that it has been a long afternoon. Thank you. The hearing has now come to an end.