The Tribunal was not satisfied that Ms UFH is incapable of consenting to the proposed medical treatment. The Tribunal therefore dismissed the application.
The Tribunal reviewed the previous guardianship order concerning Ms UFH made on 11 April 2014 and decided the order should lapse.
At the end of these Reasons for Decision are lists of the parties to the review of the guardianship order and witnesses who attended the hearing. [Appendix removed for publication.]
[2]
Background
Ms UFH, 32 years old, lives at a care facility in regional NSW. Ms UFH has cognitive impairments from a severe hypoxic brain injury in December 2011.
Her mother, Mrs TGN, and her stepfather, Mr SJN, also live in regional NSW and Ms UFH moved from Queensland to live closer to them in November 2013.
On 11 April 2014, the Tribunal appointed Mrs TGN as Ms UFH's guardian for one year with decision-making functions relating to access, accommodation, health care, medical and dental treatment, and services provision. On the same day, the Tribunal appointed Mr SJN as her financial manager.
On 23 February 2015, Mrs TGN lodged an application for consent to Ms UFH having a laparoscopic hysterectomy with bilateral salpingectomy. Such a procedure is defined as special medical treatment under s 33 of the Guardianship Act 1987 (NSW) (the Act).
On 16 March 2015, the Tribunal convened a hearing in regional NSW to deal with this application as well as the review of the guardianship order at the end of its one-year term. The Tribunal adjourned the proceedings and issued directions, with a view to obtaining further evidence. At the reconvened hearing on 13 July 2015, the Tribunal made the orders detailed above.
Ms Kellie Stares, barrister, appeared as the separate representative for Ms UFH in both hearings.
[3]
What must be proved
If a person is incapable of giving informed consent to special medical treatment then only the Tribunal can provide consent.
Before the Tribunal can consent to this type of special treatment for Ms UFH, it must be satisfied that:
Ms UFH is incapable of giving consent to the proposed special treatment; and
The proposed special treatment is the most appropriate form of treatment for promoting and maintaining Ms UFH's health and well-being; and
The treatment is necessary to save Ms UFH's life; or
The treatment is necessary to prevent serious damage to Ms UFH's health.
[4]
Capacity to consent
"Every human being of adult years and sound mind has a right to determine what shall be done with his body." (Schloendorff v Society of New York Hospital (1914) 211 NY 125, Cardozo J at 29).
This statement made by an American judge, Cardozo J, in 1914 sums up the position of the common law that applies in Australia. That same common law recognises that every adult in the community is presumed to have decision-making capacity, unless proven otherwise. The guardianship legislation does not disturb these presumptions.
The Act provides that only the Tribunal can make decisions about initial special medical treatment, including hysterectomy. However, these medical treatment provisions only apply to a patient who is incapable of giving consent to the carrying out of the treatment: s 34 of the Act. A person is incapable of giving consent to the carrying out of medical or dental treatment, according to s 33(2) of the Act, if the person:
1. is incapable of understanding the general nature and effect of the proposed treatment, or
2. is incapable of indicating whether or not he or she consents or does not consent to treatment being carried out.
"Understanding the general nature and effect", in the Tribunal's view, entails a degree of weighing up of information about the proposed medical treatment, as well as understanding and retaining the information provided. This is consistent with numerous cases on this point in England and Australia. In the English case of Re MB (Medical Treatment) [1997] 2 FLR 426 at 427, Butler-Sloss LJ said:
"A person lacks capacity if some impairment or disturbance of mental functioning renders the person unable to make a decision whether to consent to or to refuse treatment. That inability to make a decision will occur when:
a. a patient is unable to comprehend and retain the information which is material to the decision, especially as to the likely consequences of having or not having the treatment in question;
b. the patient is unable to use the information and weight it in the balance as part of the process of arriving at the decision".
This formulation has been cited with approval on many occasions, including by Australian authorities. McDougall J of the NSW Supreme Court in Hunter and New England Area Health Service v A [2009] NSWSC 761 at [24] and [40], for example, stated that:
"…there is no sharp dichotomy between capacity on the one hand and want of capacity on the other…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 that decision."
In making its decision, the Tribunal must observe the principles set out in the Act, which include that:
the freedom of decision and freedom of action of persons who have disabilities should be restricted as little as possible;
such persons should be encouraged, as far as possible, to live a normal life in the community;
the views of such persons in relation to the exercise of the functions under the Act should be taken into consideration; and
such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs.
During the adjournment period, Ms UFH was assessed by Prof Z, a forensic psychologist. In her subsequent report dated 24 April 2015, Prof Z wrote following the Summary and Opinion:
At the time of the assessment, [Ms UFH] was aged nearly 32 years, an overweight young woman who cooperated with the assessment to the best of her ability, although there were clear difficulties with her memory and functioning. She functions in the range of mild intellectual disability for cognitive reasoning and in the range of severe impairment for adaptive behaviour. There is a significant difference between her verbal and non-verbal cognitive reasoning levels, indicating that prior to the overdose in December 2011, she functioned at a much higher level than she does currently. According to the documentation available to me she suffers from challenging behaviour and also has a number of false beliefs.
She has a familial history of severe menstrual breeding and endometriosis; both her mother and grandmother had hysterectomies in their 30s. [Ms UFH] grew up with the knowledge that these conditions would probably affect her at some time.
Despite her deficits in cognitive reasoning and adaptive behaviour, her responses to questions which I put to her concerning the proposed procedure of laparoscopic hysterectomy with bilateral salpingectomy indicated that she understood the nature and effect of the proceedings, including that she would have a general anaesthetic, and that she would be unable to have children of her own following the procedure. She gave a number of reasons for her preference for undergoing the procedure including that the migraines with which she suffers would be likely to lessen, and that her medications would be reduced, with subsequent health benefits. She became quite distressed about her current situation, saying that she felt like she was a prisoner in her own body. In my opinion, [Ms UFH] has the capacity to give consent to the special medical procedure which is proposed.
Ms UFH's presentation at the hearings was similar to that reported by Prof Z. She was able to give a good description of what the procedure entailed and the consequences of having it, and not having it.
It also appeared to the Tribunal that the false beliefs referred to by Prof Z extended to matters relevant to the special medical treatment being proposed: including frequency of pain and severity of menstrual bleeding.
The Tribunal had detailed records from the care facility that were not available to Prof Z at the time of her assessment. These notes indicated that on a day-to-day basis, Ms UFH rarely complained of pain or exhibited any pain related behaviour. Staff observed no evidence of menstrual bleeding even when, with Ms UFH's permission, they examined discarded sanitary pads and clothing from a time when Ms UFH said she was bleeding heavily. In other words, although Ms UFH complains of severe menstrual bleeding and associated pain there is no objective evidence corroborating this or any historical evidence of this problem after she had gynaecological surgery before moving to Queensland.
[5]
What did the Tribunal have to decide?
At review, the Tribunal may renew, renew and vary, or lapse an existing guardianship order.
The questions which have to be decided by the Tribunal are:
Is Ms UFH someone for whom the Tribunal could make another order because she continues to have a disability which makes him totally or partially incapable of managing her person?
Should the Tribunal make a further guardianship order and, if so, what order should be made?
Who should be the guardian?
How long should the order last?
[6]
Is Ms UFH someone for whom the Tribunal could make another order because she continues to have a disability which makes her totally or partially incapable of managing her person?
The Tribunal can make a guardianship order in respect of Ms UFH if it is satisfied that she is a person in need of a guardian. The Act defines "a person in need of a guardian" as a person who, because of a disability, is totally or partially incapable of managing his or her person.
The Tribunal has previously found that because of her disabilities Ms UFH is at least partially incapable of managing her person, and so is a person about whom a guardianship order could be made if needed. There was no new medical evidence before the Tribunal at this hearing that was inconsistent with this finding, which was not in contention at the hearing.
The Tribunal was satisfied that Ms UFH continues to be a person about whom a guardianship order could be made.
[7]
Should the Tribunal make a guardianship order?
Section 14 of the Act sets out the following as matters that the Tribunal has to have regard to when considering whether to make a guardianship order:
the views of the person, the spouse and the person who has the care of the person;
the importance of preserving existing family relationships;
the importance of preserving cultural and linguistic environments; and
the practicality of services being provided to the person without the need for making a guardianship order.
The Tribunal also has to observe the general principles of the Act, which are set out above.
All persons in attendance at the hearing agreed that there was no need for a further guardianship order for Ms UFH, as she was likely to get the services and care that she required without such an appointment. The Tribunal was told that:
Mrs TGN has taken all available steps to attempt to obtain alternative accommodation for Ms UFH. There is no disagreement about the desirability for Ms UFH to have more age-appropriate accommodation. Ms UFH agrees with this. The barrier is the availability of alternative suitable accommodation. There is no need for a legal alternative substitute decision-maker about this issue;
Ms UFH receives services through a care services provider for three days a week. A case manager with the care services provider confirmed that a guardianship order is not required for Ms UFH to continue to receive such services or for them to recognise Mrs TGN as a relevant person to be involved in decision-making about such matters;
The need for the access function was an historical one. There has been no concern about inappropriate access to Ms UFH since she has moved to regional NSW and so there is no need for a substitute decision-maker for this issue.
The Act provides that family members with a close and continuing relationship with Ms UFH would be her "persons responsible"; as such, they are able to make medical and dental treatment decisions for Ms UFH, when Ms UFH is considered unable to make informed decisions about such treatment herself.
At present, Ms UFH's mother, Mrs TGN, is Ms UFH's person responsible.
There was no evidence before the Tribunal indicating an area in which a guardian should be reappointed to make required decisions concerning Ms UFH.
In these circumstances, the Tribunal decided that a further guardianship order should not be made. All persons participating in the hearing agreed with this outcome.
Having decided this, there was no need to address the other questions set out above.
[8]
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: 16 May 2017
Since moving to regional NSW to be closer to her family, Ms UFH has been consistent in her decision that she wants to have a hysterectomy. All of the evidence before the Tribunal indicates that the issue of having a hysterectomy preoccupies Ms UFH greatly.
The Tribunal was satisfied that Ms UFH has a good knowledge of what would be involved in the proposed procedure and is generally able to use the information given to her about it and weigh it up in order to arrive at her decision. Ms UFH is aware of the risks associated with the treatment, the consequences of it (being sterilised) and the fact that other choices are available to her.
However, the Tribunal had concerns that the underlying basis for Ms UFH's decision - that she suffers from gynaecological conditions that caused severe bleeding and pain - may flow from false beliefs.
Ms UFH has very fixed views about some of the matters associated with her decision. As is noted above, some of these did not clearly follow from objective information available.
It is important, when determining issues relating to the capacity to consent to medical treatment, not to confuse a person's capacity to make such decisions with a review of the merits of the decision being made. McDougall J, in the case cited previously, points out that the lack of any discernible basis for a decision may be something to be taken into account when assessing a person's competency to make it. Nevertheless, "the patient's right of choice exists whether the reasons for making that choice are rational, irrational, unknown or even non-existent": Lord Donaldson of Lymington MR in Re T [1993] Fam 95 at 113.
Prof Z was aware of Ms UFH's propensity to retain what Prof Z referred to in her report as "false beliefs" and "imaginary beliefs". Yet she concluded that Ms UFH has the capacity to make her own decision regarding consent to the proposed special medical treatment.
Prof Z is a recognised international expert in this area and the Tribunal had no comparable detailed clinical or medical evidence before it that was contrary to Prof Z's opinion. Even though Prof Z may not have had the full detail of the extent to which Ms UFH's false beliefs may have related to her gynaecological condition, she was aware more generally that they encompass Ms UFH's beliefs about her medical conditions.
The Tribunal considered that it had to place great weight on the clinical opinion of Prof Z regarding Ms UFH's capacity to consent to the proposed special medical treatment. Ms Stares agreed with this.
Taking the evidence of Prof Z into account, the Tribunal was not satisfied on the balance of the evidence before it that Ms UFH is incapable of consenting to the proposed special medical treatment. Consequently, the Tribunal dismissed the application. Having done so on that basis, it was not necessary for it to consider the other questions detailed above.
This means that the decision about whether to have the proposed special medical treatment is Ms UFH's to make. Ultimately, the question of whether such treatment is indicated medically is a matter for her treating doctors.