Guthrie v Spence

The hearing

1. The application was received on 11 May 2020. Given the stage of GKB's pregnancy and the need for the matter to be considered on an urgent basis, the hearing was listed for 13 May 2020.
2. The parties to the proceedings were GKB and EJG: Civil and Administrative Tribunal Rules 2014 (NSW), r 27.
3. An Arabic speaking interpreter was organised for the hearing. At times GKB spoke in English but the majority of her evidence was provided in Arabic.
4. On 12 May 2020 a separate representative was appointed for GKB by the Tribunal. Ms Jill Hill, Barrister, participated in these proceedings in this role. Ms Hill told us that prior to the hearing she was able to speak by telephone with GKB, as well as a social worker at the public hospital (Ms Y) and GKB's National Disability Insurance Scheme (NDIS) support coordinator, Ms X. Ms Hill had only been able to speak with GKB in English as she had been unable to arrange an Arabic interpreter in the time available. However during the course of this hearing, Ms Hill was able to ask the same or similar questions of GKB but with the assistance of the Arabic interpreter. According to Ms Hill, GKB's responses to her questions were consistent with her earlier responses.
5. Due to the COVID-19 pandemic, the hearing proceeded without the participants attending in person before the Tribunal. Instead, GKB and Ms X participated by way of videoconference. The applicant, the social worker from the public hospital, the separate representative, the interpreter and GKB's general practitioner, Dr W, took part by telephone.
6. We note that these proceedings took place during the period of Ramadan. We were informed that whilst fasting is the custom during Ramadan, GKB had not been expected to do so. However each of Ms X, Dr W and the Arabic interpreter had done so in the time leading up to this hearing.
7. We also note that none of GKB's family members participated in the hearing. Nor were any family members advised or notified of the hearing. As will be outlined further below, Ms X told us that GKB's parents have been informed by someone outside of the family that GKB is pregnant. GKB told us that she has not spoken with anyone in her family about her pregnancy and her parents have not spoken to her about the information they have been given. In the preparations made for this hearing and during the course of the hearing, it was evident that GKB did not wish for any member of her family to take part in the hearing, to know of her pregnancy or to know about this application. Given this we did not seek to involve any member of her family.

GKB's evidence

1. GKB told us that she does not want to be pregnant, that she is "too young" to have a baby and wants to have the operation as soon as possible. She told us that "I don't want to be for a longer time with a baby in my stomach. I want this to be done as soon as possible…I want to get rid of this."
2. GKB told us that she wants to go back to school. Ms X explained to us that in a number of discussions that they have had, GKB has explained that she wants to return to her school but not if she is pregnant and especially not if she looks pregnant.
3. When asked what would happen if she did not have a termination, GKB said that it would be "a big problem" with her parents. When asked why this was, GKB responded there would be "too many problems with my family…because they are concerned about me and worry about me". When asked why her family would be worried, GKB responded "if my family know I'm pregnant they will finish me".
4. GKB was asked about her understanding of the procedure in question. She told us that:

• she would be sleeping during the operation
• while she was asleep "I will be bleeding, blood will come out. They will use something in my uterus and take the baby out."
• after the operation, "I'll be bleeding a little bit. I would get rid of the baby. I will lead my beautiful life."

1. In his application EJG wrote that the treatment involves the following risks or potential side effects: risk of retained products of conception, risk of perforation, risk of Asherman's syndrome.
2. When we asked her about her understanding of the potential complications of a surgical termination, GKB did not seem to be able to offer any comment. It was unclear to us whether this meant that GKB did not know, or could not recall, potential complications or whether she was tired as a result of the hearing, that had proceeded over a number of hours, and did not wish to answer.

Written material

1. We were given a copy of an undated report prepared by Ms Z, Psychologist, on behalf of a registered NDIS provider. We were told by Ms X, however, that the assessment took place in early 2020.
2. The assessment was undertaken to determine GKB's support needs for the purposes of independent living and vocational planning. After setting out the testing undertaken to assess intellectual ability, and following the completion by Ms X of an assessment of GKB's adaptive functioning, the conclusions reached were as follows: "The current assessment indicates that [GKB]'s intellectual abilities are rated significantly below average in the impaired range. Her results were consistent across all areas of cognitive function indicating a global impairment. According to her support coordinator's ratings on a formal questionnaire, [GKB]'s adaptive ability appear to be severely restricted meaning she requires support in her day to day functional needs across all domains (conceptual, practical and social). While all domains were rated consistently as extremely low, a major deficit was in self-direction which may prove challenging in her capacity to secure any form of volunteer or paid employment. Although [GKB]'s cognitive and living skills are hindered, her interest in living independently and in social interactions are a strength."
3. We were also given a copy of a referral letter dated 6 May 2020 from Dr V, Family Planning NSW to the applicant.
4. Dr V had noted that she engaged in a lengthy consultation with GKB on 23 April 2020 for pregnancy option counselling. She met with GKB alone and with Ms X. During that consultation, an Arabic TIS interpreter participated but did not speak the same dialect as GKB and Ms X therefore provided much of the translation. Dr V's report noted that: "I think [GKB] understood that she was pregnant and was adamant that she didn't want to continue with the pregnancy. Medical and surgical termination of pregnancy (STOP) options were discussed with [GKB]. The surgical termination process ([GKB]'s preference) was discussed with [GKB]. I was uncertain that [GKB] could consent to the procedure particularly around understanding the risks of STOP, after care and being to recognise "red flag issues". I also spoke with her about LARC and [long acting contraception] contraceptive options but I am not confident in her capacity to consent to ongoing contraceptive options either. … In view of her complex psychosocial situation and the consent issues, it was felt that [GKB]'s situation was too complex to be handled by Family Planning NSW and it was more appropriate for her to be assessed and managed in a hospital setting."

Ms X - NDIS Support Coordinator

1. Ms X told us that she has been involved with GKB and her family for approximately three years since their arrival in Australia. She first became involved in supporting them whilst working at a medical centre and more recently as GKB's NDIS support coordinator. According to Ms X, other members of GKB's family, including her parents, have Fragile X syndrome.
2. Since GKB found out that she was pregnant, she has contacted Ms X almost every day and made clear that she wants to end the pregnancy.
3. According to Ms X, GKB's parents have been told by an acquaintance that their daughter is pregnant. Ms X described GKB's parents as being "in denial" and believes this has been possible because GKB has not been showing any obvious physical signs of pregnancy. They have not asked GKB whether she is pregnant. Ms X told us that from a cultural and religious perspective, in the Mendaeism faith pregnancy outside marriage is "a big sin".
4. GKB has told Ms X, and has reported to police, that she has experienced domestic violence in her home. Ms X was not certain of details but noted that she understood from GKB that her father has been violent to both GKB and her mother. Approximately two months ago, GKB left her family home and went to the police with this complaint. In consultation with Ms X the police arranged for group home accommodation where GKB lived for a short period of time. However when she found that she was pregnant, without any discussion with police or Ms X, GKB returned to her family home and has remained there since.
5. Based on her knowledge of GKB and GKB's regular and frequent contact with her since learning of her pregnancy, Ms X is in no doubt that GKB wishes to end her pregnancy and that she understands what will be involved if she undergoes a termination procedure, namely that she will no longer be pregnant after that procedure is conducted.

Dr W - General Practitioner

1. Dr W has been GKB's general practitioner since 2017. Dr W is able to speak with GKB in her own language. Dr W told us that she has seen GKB twice in relation to her pregnancy and it was Dr W who referred GKB initially to Family Planning NSW.
2. On the first occasion that Dr W met with GKB, GKB told her that she was pregnant. When Dr W asked GKB what she wanted to do, GKB told Dr W that she wished to end the pregnancy. Dr W told us that they discussed various options, including the differences between a medical termination and a surgical termination. GKB told Dr W that she wanted surgical termination. They also discussed potential complications from a surgical termination.
3. When asked whether she believes that GKB has the capacity to make the decision to terminate her pregnancy, Dr W answered in the affirmative. Dr W told us that she thinks that GKB understands "very well" about the termination procedure.
4. We asked Dr W whether she had discussed the potential complications of a surgical termination of pregnancy with GKB and she told us that she had done so. Dr W also indicated that in her view, if GKB was still uncertain or unclear about these issues, then with further explanation and discussion she believes that GKB would be able to understand these issues.
5. We referred Dr W to the report conducted by Ms Z in which certain conclusions were drawn about the extent of GKB's intellectual and adaptive functioning. Dr W could not recall specifically whether she had read that report. We read salient aspects of the conclusions to Dr W. Dr W told us that she agreed that GKB has "intellectual problems" and did not disagree with the contents of the report. She told us that GKB needs guidance. However, Dr W's view was that GKB's intellectual disability does not mean that she does not understand that she is pregnant, that she wishes to have a termination, and what the consequences of the termination will be. Dr W said that having spent time with GKB and explaining the options and the consequences and the nature of the procedure to her, she believed that GKB "understood very well".

EJG - applicant

1. EJG gave evidence that with the assistance of an interpreter in the Arabic language as well as a female Registrar of Arabic background, he spoke at some length with GKB about the proposed termination. He emphasised that he did not prompt GKB and that she came to him requesting that the procedure take place.
2. EJG gave specific evidence of the questions asked by him and the answers provided by GKB. He told us that he explained the procedure to GKB and the outcome of the procedure that she would no longer be pregnant. In EJG's view, GKB understood what was being discussed. He asked her whether she understood that after the procedure she would not be able to change her mind and change what had occurred, GKB told him that she understood this.
3. EJG formed the impression on the basis of that discussion that GKB understood what she was requesting.
4. As previously noted, the applicant lodged this application due to the content of the report from Ms Z previously noted which provided an assessment of GKB's intellectual and adaptive functioning. EJG also noted that his Registrar, who spoke Arabic, told him that GKB's language usage indicated that that another person may have had suggested that she undergo the procedure, but they could not be certain whether this was in fact what GKB had meant.
5. Both EJG and Ms Y also noted that in the current circumstances arising from the COVID-19 pandemic, they were not confident that it would be possible with any urgency to arrange for a formal assessment of GKB's decision- making capacity, for example by a hospital neuropsychologist, concerning the proposed treatment.

Separate Representative's submissions

1. The separate representative's submissions may be summarised as follows:

• The starting point is that GKB is presumed to have capacity to make this decision unless proven otherwise.
• Since learning of her pregnancy, GKB has consistently expressed the view that she wishes to have a termination.
• GKB appears to be able to arrive at a decision, weigh up the information that is given to her and remember that information.
• Dr W's evidence was helpful in this respect given that she has explained the options, procedures and potential complications to GKB and believes that GKB is able to understand these issues.
• It may well be that GKB is not able to weigh up all of the nuances, for example, of a surgical procedure including the potential complications. However, the test to establish incapacity is whether GKB is incapable of understanding the general nature and effect of the treatment.
• The test for capacity should not be applied such that it becomes discriminatory against someone with an intellectual disability.
• The separate representative submitted that we should find that GKB does have capacity to make her own decision about the medical treatment proposed.
• There is insufficient evidence before the Tribunal to establish that GKB does not have capacity to make her own decision.

Application of Pt 5 of the Guardianship Act - must be "incapable of giving consent"

1. GKB is presumed as an adult to have the capacity to make decisions that affect her life unless that presumption is rebutted (Hunter and New England Area Health Service v A [2009] NSWSC 761, ("Hunter and New England Area Health Service") at [23]).
2. Whilst this presumption has not been given explicit statutory force in Pt 5 of the Act, it is nevertheless regarded as starting from this basis given that Pt 5 of the Act only has application if a person is found to be "incapable of giving consent to the carrying out of treatment": s 34(1).
3. A number of points may be noted about these provisions in Pt 5 of the Act.
4. The ordinary plain English meaning of the words (understanding the general nature and effect) of proposed treatment suggests that a person must be incapable of understanding the main features or elements of the proposed treatment and does not entail being incapable of understanding the specific, special or exact or detailed nature and effect of the proposed treatment (UMG [2015] NSWCATGD 54 at [133]-[156]).
5. In light of the ordinary and grammatical sense of the words of ss 34 and 33(2) of the Act and having regard to context and legislative purpose, the provisions in Pt 5 of that Act are consistent with the principles surrounding the common law understanding of capacity and it is appropriate to look at the common law authorities when determining whether or not a person is "incapable of giving consent to the carrying out of medical or dental treatment" under s 34(1) of that Act (UMG [2015] NSWCATGD 54 at [133]-[156]).
6. In Hunter and New England Area Health Service, the Court 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' (see Butler-Sloss LJ in Re MB [1997] 2 FCR 514 at 553). 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 (as Lord Donaldson pointed out in Re T at 113). 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. 25 As Butler-Sloss LJ said in Re MB at 553 - 554, 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. … 40 … (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 persons volition: if, by some means, the person's will has been overborne or the decision is the result of undue influence, or of some other vitiating circumstance."
7. The decision in Hunter and New England Area Health Service was subsequently applied in Re JS [2014] NSWSC 302 and Application of a Local Health District; Re a Patient Fay [2016] NSWSC 624.
8. These authorities adopt formulations of the common law test outlined in a number of UK decisions including Re MB [1997] 2 FCR 514 (see, in particular, 553-554) and In re T (Adult: Refusal of Treatment) [1993] Fam 95.
9. In the case of In Re C (Adult: Refusal of Treatment) [1994] 1 WLR 290, Thorpe J considered that in order for a finding of incapacity to be made, "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 effects of the proffered [treatment]" (at 295). He applied the following analysis to the decision-making process (at 295):

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

Consideration

1. As a preliminary issue, we observe that during the hearing GKB was attentive and participated in the hearing to the best of her ability with all of the challenges that it presented. This included communicating with the Tribunal members by way of video conference and having an interpreter assisting by telephone. The interpreter was someone that GKB could not see and at times had some challenges in understanding but with adjustments to the speed and the way in he spoke, GKB was able to participate and provide very clear evidence.
2. As previously stated, the critical issue in this matter concerned GKB's ability to consent to the proposed treatment.
3. The starting point is that as an adult, GKB is presumed to have the necessary capacity to consent to the proposed treatment. It is only if the evidence supported a finding that GKB was incapable of understanding the general and nature and effect of the proposed treatment that the provisions of Pt 5 of the Act would apply to her.
4. We therefore needed to consider whether the evidence satisfied us that GKB is incapable of understanding the general nature and effect of the proposed treatment, in that, is she unable to comprehend and retain the information which is material to the decision, in particular as to the consequences of the decision, or is she unable to use and weigh the information as part of the process of making the decision (Re JS [2014] NSWSC 302 at [18] (Darke J); Hunter and New England Area Health Service at [23]-[25] (McDougall J)).
5. Having regard to the written and oral evidence provided in this matter, we accepted that the following matters were established to the requisite civil standard.
6. GKB very clearly does not wish to proceed with her pregnancy and she understands in general terms the nature of the procedure that will need to occur for her pregnancy to end. GKB told us that she would be asleep while the surgical procedure took place and without prompting told us that "they will use something in my uterus and take the baby out". She told us that there would be bleeding as a result.
7. Whilst GKB did not outline in further detail other possible adverse consequences such as those outlined in the application, we were told that these had been explained to her by the applicant and by her general practitioner and on those occasions, she appeared to understand these matters. We also had Dr W's evidence which we found persuasive given the length of time she has been GKB's general practitioner and familiarity with GKB's circumstances and background. Dr W expressed the view that based on her knowledge of GKB, she could acquire a more detailed understanding of the possible risks or side effects of the treatment if it were explained to her again. In this regard we note and agree with the view expressed by the former Guardianship Tribunal in SKX [2010] NSWGT 29, [41] that: "… the capacity for some persons with milder intellectual disability to make informed consent decisions may change over time with targeted training/educational/support sessions."
8. GKB provided a number of reasons for wanting to end her pregnancy including fears about the response of her family should it be confirmed with them that in fact GKB is pregnant; that she feels that she is too young to be pregnant and have a baby; and that she wishes to return to school. We understood from her evidence about the latter point that GKB does not wish to be pregnant when she does return to school.
9. We formed the view that GKB was by this evidence exhibiting an ability to understand that there were options available to her, one of which is continuing with the pregnancy, but she did not wish to do so for a number of reasons each of which appeared rational.
10. We also heard the evidence of other people involved in her life who told us that GKB has consistently expressed the view since learning of her pregnancy that she wished to end her pregnancy.
11. Ms X who has had close and continual contact with GKB told us that since learning of her pregnancy, GKB has consistently expressed the view that she wishes to end her pregnancy and understands the consequences of having a termination.
12. We also placed weight on Dr W's evidence that she has had two consultations with GKB about her pregnancy, has discussed with her the options and is of the view that GKB can understand the general nature of a termination procedure and the consequences.
13. We also noted the evidence of EJG that his Registrar who spoke with GKB in Arabic told him that some of the language used by GKB during the consultation at the public hospital may have indicated that another person had suggested to GKB that she should have the procedure. We needed to be satisfied that GKB has arrived at her decision to undergo a termination without her will being overborne by another person or being subject to any undue influence (Application of a Local Health District; Re a Patient Fay [2016] NSWSC 624; In re T (Adult: Refusal of Treatment) [1993] Fam 95).
14. On the evidence available to us we were satisfied of this. There was no indication that another person has exerted pressure, or undue influence on GKB to undergo this procedure. Each of the witnesses who have known GKB for some time, Ms X and Dr W, indicated that GKB had independently expressed the wish to them that her pregnancy be ended. There is clearly no direct pressure from family members. The evidence indicated that GKB's family situation is complex, and it is not clear that her parents definitively know that she is pregnant or at the very least are willing to accept that she may be pregnant. We were therefore not of the view that GKB's capacity to provide consent to this treatment is impeded by the influence of another person or persons.
15. We also considered the written report by Ms Z, psychologist. None of the witnesses at the hearing disputed that GKB has an intellectual disability. That report was, however, prepared for a very different purpose, namely to assess GKB's functioning both in relation to her intellectual capacity and her adaptive functioning for the purposes of taking forward an NDIS application to provide support in vocational and independent living planning. The findings in the report and its content are not irrelevant to the question of GKB's decision-making capacity in respect of the current decision before her but nor are they determinative.
16. 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": Guthrie v Spence [2009] NSWCA 369 at [174]-[175] (Campbell JA) (with whom Basten JA and Handley A-JA agreed). We accept that GKB has an intellectual disability and took into account the conclusions drawn in the psychological report as to the extent of her intellectual impairment and its impact on her adaptive functioning including that she requires support in her day-to-day functional needs. However, GKB's intellectual disability and its impact on her intellectual abilities has not impeded, in our view, her ability to clearly explain to others over a period of time that she wishes to end her pregnancy. We were also persuaded on the evidence provided by Dr W and Ms X that with time and opportunity for discussion, GKB has also been able to come to an understanding of what the consequences of the treatment may be, including some of the potential side effects that include bleeding and that with further explanation and discussion she may be able to understand some of the more detailed risks and side effects. However, there appeared to be little doubt in the evidence that GKB understood that as a result of a termination procedure, she would no longer be pregnant, and she understood the process by which this would occur.
17. There was also evidence before us that GKB has had a lengthy consultation with Dr V at Family Planning NSW in which these matters were discussed. Although Dr V expressed some concerns about GKB's capacity to consent to the procedure particularly around understanding certain risks associated with the procedure, we were satisfied on the evidence from Dr W and EJG that GKB has an understanding of these matters.
18. Based on this evidence, we formed the view that GKB comprehends the main features of the proposed treatment and is able to retain information as to the effects of the proposed treatment and its consequences. She has been able to recount the details of the proposed treatment to different people over a period of time and to the Tribunal at the hearing.
19. For the reasons discussed, we were satisfied that GKB comprehends the significance of the termination procedure and that she would no longer be pregnant and will not have a baby. We were satisfied that GKB has, with the support of health professionals around her, considered and weighed information provided to her about the treatment and has expressed a view and been able to weigh some aspects of that decision making, for example, GKB, according to Dr W, chose to have a surgical termination rather than a medical termination.
20. In these circumstances, the Tribunal was not satisfied that GKB is incapable of understanding the general nature and effect of the proposed treatment.
21. As such, GKB is not incapable of giving consent to the carrying out of the proposed medical treatment: the Act, s 34(1). Part 5 of the Act does not therefore apply to GKB, and the application was dismissed.

Long-acting contraception - Major medical treatment

1. We made it clear to the parties at the outset of this hearing that the focus of the hearing was on the application for special medical treatment given the urgency of this proposed treatment. We did not deal in any respect with that part of the application that sought consent for the insertion of a contraceptive rod. Nevertheless, our decision dismissed the entirety of the application for medical consent. If the insertion of a contraceptive rod, which constitutes "major medical treatment" under the Act, is still sought then consent for that medical treatment should be sought directly from GKB. If, however, the practitioner proposing that treatment is of the view that GKB is incapable of giving consent, then substitute consent may be sought from a person responsible for GKB or directly from this Tribunal.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 November 2023