Hunter and New England Area Health Service v A

Procedural issues

1. The application was received on 12 August 2024. Given the stage of FXB's pregnancy and the need for the matter to be considered on an urgent basis the application was listed for hearing on 16 August 2024.
2. On 13 August 2024 a separate representative was appointed for FXB by the Tribunal. Ms Wendy Muir, solicitor, participated in these proceedings in this role. Ms Muir told us that she had been able to visit FXB at the public hospital the day before the hearing and had obtained instructions.
3. At the end of these Reasons for Decision are lists of the parties to the application and the witnesses who attended the hearing. [Appendix removed for publication.]
4. Prior to the hearing, we were told that Mr Y had been provided with notice of the time and location of the hearing as well as the dial in details. We telephoned him and he told us that he was busy and to call him back later. The call was then terminated. NZL reported that the Mental Health Review Tribunal had stood FXB's Mental Health Inquiry down in the hearing list as long as possible on 26 July 2024 anticipating that Mr Y would participate. Unfortunately, he did not arrive at the public hospital and did not answer telephone calls. NZL reported that he has had difficulty contacting Mr Y during his own involvement in FXB's care. We noted that it was recorded in the written material we received that Mr Y has indicated that he supports FXB's decision to terminate the pregnancy. There is no evidence to suggest that he has any role or involvement in the matter for the purposes of the Guardianship Act other than as a friend or a support person. There is no evidence to suggest that Mr Y is a "person responsible", "spouse" or a "carer" within any of the definitions found within the Guardianship Act.
5. FXB and Ms Muir, the separate representative, both considered that the hearing should proceed on the basis that we would try to contact him again at the conclusion of the evidence. We were satisfied that Mr Y's views were contained within the written evidence and that there was no basis to adjourn the hearing to obtain further evidence from him particularly as there was no suggestion that he was a party to the proceedings.
6. At the conclusion of the evidence, we attempted again to telephone Mr Y without success.

Written application for consent to special medical treatment 12 August 2024

1. The written application for consent to special medical treatment is contained in an application form from NZL dated 12 August 2024, a written report dated 5 August 2024 from NZL received on 12 August 2024, and progress notes from the obstetrics and gynaecology team attached to an email sent to the Tribunal from NZL at 9:29 pm on 12 August 2024.
2. Consent is being sought from NCAT as the treatment is special medical treatment: the application is that the Tribunal consent to a termination of pregnancy by means of the administration of Mifepristone followed by Misoprostol 48 hours afterwards (PV/PO) with potentially multiple doses of Misoprostol required.
3. NZL requested that the hearing be conducted on an urgent basis so that the termination could be carried out as soon as possible given FXB's state of pregnancy. In the application form he wrote that the treatment would not involve a general anaesthetic or other sedation, any significant risks or side effects. The likely consequences if the proposed treatment was not carried out would be a deterioration in the patient's mental health. The patient is receiving routine psychotropic medications to treat her diagnosed mental illness. NZL wrote in an email to the Tribunal at 9:29 pm on 12 August 2024 that if the termination was still unsuccessful after reaching the maximum doses of oral tablets, the obstetrics and gynaecology team would have to proceed to the operating theatre for surgical removal of the foetus under general anaesthesia.

Health professional report form for special medical treatment applications 16 August 2024

1. On the day of the hearing, we received a health professional report dated 16 August 2024 which was in part completed by NZL and in part completed by Dr W, consultant in obstetrics and gynaecology and Dr V, registrar in obstetrics and gynaecology.
2. We read the health professional report in conjunction with the application for consent to special medical treatment. Under Part 6 of the health professional report, Dr W and Dr V reported that the medical termination of pregnancy will not impact FXB's future fertility.
3. In terms of the risks and complications associated with the proposed treatment, there is a risk of postpartum haemorrhage/retained placenta for which uterotonics medications and surgical interventions may be required, the latter under general anaesthesia in theatre including manual removal of the placenta and examination under general anaesthesia to repair any (unlikely to occur) laceration.
4. NZL told us at the hearing that he had brought the application for consent to special medical treatment to the Tribunal on the basis that he did not believe that FXB had the capacity to consent to the termination of pregnancy and he was concerned that her mental state would fluctuate and that she would potentially try to leave the birthing suite or hospital during the termination process or if surgery became necessary.
5. The Guardianship Division of NCAT does not have the jurisdiction to provide consent to surgical treatment for patients detained under the Mental Health Act. Provisions with respect for surgery for involuntary patients detained under the Mental Health Act are found in Pt 3 of that Act. FXB remains an involuntary patient under the Mental Health Act unless discharged by the treating team or the Mental Health Review Tribunal. Consent to treatment by the Guardianship Division of NCAT has no bearing on FXB's status as an involuntary patient under the Mental Health Act.
6. Accordingly, we considered that the only special medical treatment application we had jurisdiction to determine was with respect to a termination of pregnancy by means of the administration of Mifepristone followed by Misoprostol 48 hours afterwards (PV/PO) with potentially multiple doses of Misoprostol required.
7. We noted that the health professional report dated 16 August 2024 and progress notes from the obstetrics and gynaecology team also referred to a proposal that the Tribunal consent to the insertion of a temporary contraceptive device in the arm releasing Progesterone "Implanon", a long-term contraception method which would aim to provide contraception for up to three years and could be removed earlier if FXB wished to conceive.
8. Ms Muir had not had the opportunity to discuss this proposal with FXB prior to the hearing. Ms Muir considered that we should consider strictly the application before us. We were not satisfied that the insertion of an Implanon device was treatment that would ordinarily be considered part of, or incidental to, the termination of pregnancy by means of the administration of Mifepristone followed by Misoprostol 48 hours afterwards (PV/PO) with potentially multiple doses of Misoprostol required. We were not satisfied that the matter was sufficiently urgent that it required an oral application and determination at the current hearing. Accordingly, we decided that we would only consider the application before us, that is the application for consent to special medical treatment.

FXB's evidence

1. FXB told us that she does not want to continue with the pregnancy. She said that she has been pregnant before, has gone through labour, given birth which was a "heavenly" experience and is not interested in continuing with this pregnancy. She suffers from severe lower back pain and does not believe that she will be able to tolerate the pregnancy going any further. FXB does not want to have this baby and wants to be discharged from hospital. FXB is particularly frustrated as she understands that if she were not pregnant, she would already have been discharged from hospital as she is at her psychiatric baseline. She understands that the termination will involve her having different medications that will cause her to start laboring and end the pregnancy by delivery of the foetus. She understands that there may be pain and bleeding involved and her preference is to receive gas for pain relief. She told us that the physical pain she suffers from her back, her desire to leave hospital and her unwillingness to have a baby in her life are the major reasons for her decision to terminate the pregnancy. FXB appeared to be frustrated that her views are being questioned. Although FXB demonstrated symptoms of mental illness during the hearing, namely some mood lability and thought disorder, she remained consistent in her evidence and reasoning with respect to the medical termination of the pregnancy.

Overview of other evidence

1. In his written application for consent to medical treatment dated 12 August 2024, NZL wrote that FXB's chronic diagnosis of schizophrenia affects her decision-making capacity. He wrote that FXB supports the application. As of 12 August 2024, FXB had agreed consistently to the termination for one week although previously her agreement had fluctuated. NZL wrote that at the time the application was lodged, FXB had been unable to retain information and express the risks or benefits of receiving/not receiving treatment. He reported that as FXB is experiencing a relapse of schizophrenia, her responses "fluctuate in relation to whether she wants treatment with evidence of illogical rationale".
2. NZL provided us with a written report dated 5 August 2024 and supplemented by a further report dated 15 August 2024. NZL reported that FXB has a diagnosis of schizophrenia with a mood component and recurrent drug-induced psychosis. Her polysubstance abuse relates to methamphetamine and marijuana.
3. As noted above, FXB's most recent admission was to the mental health unit between 13 June 2024 and 19 June 2024. NZL provided an outline of FXB's last discharge summary. FXB was admitted for agitation and aggression in the context of ongoing methamphetamine use without plans for cessation. A complicating factor to the presentation was the discovery that FXB was pregnant. She initially expressed plans to terminate the pregnancy but refused an inpatient ultrasound and then agreed to obstetrics and gynaecology involvement after she changed her mind and decided to continue with the pregnancy. As such, the obstetrics and gynaecology team were consulted who provided a discharge plan regarding the pregnancy and the Department of Communities and Justice was notified about the pregnancy.
4. FXB was then admitted to the public hospital on 17 July 2024 with behavioural disturbance in the context of methamphetamine use and she was detained as mentally ill under the Mental Health Act.
5. In his report dated 15 August 2024, NZL reported that FXB's mental state has continued to improve. Her thought form has stabilised and is now mostly logical, coherent, and linear, compared to previous derailment. She has ongoing delusions, although these are less overt than previously. She continues to have irritability and fast speech, as well as an elevated and labile affect, suggesting ongoing mood disturbance. NZL reported that FXB's "mental state has shown improvements as her mood is stabilising to baseline. She remains thought disordered and continues to be difficult to engage in extended reviews due to poor insight and not believing she should be in hospital."
6. NZL said that FXB only became compliant with antenatal care and amenable to receiving morphology scans on 15 August 2024. Before this, she consistently refused care and scans and there did not appear to be any correlation between her compliance with antenatal care or her wishes to continue or terminate her pregnancy.
7. NZL said that FXB has a continuing condition of schizophrenia with a mood component. She remains in the recovery phase of her illness with ongoing, though improving, symptoms. She has poor insight into her illness, does not believe that she has a mental illness, does not believe that she needs medications or that methamphetamine use has any effect on her, and she has a history of poor compliance with treatment. NZL said that for this reason, the Mental Health Review Tribunal made an involuntary patient order of up to four weeks to be reviewed on or before 23 August 2024.
8. NZL acknowledged that FXB had initiated discussions around the termination of pregnancy with the treating team early in her admission, however her reasoning for requesting termination was illogical and at times driven by delusional ideation. He said that the same was true with the views expressed for continuing with the pregnancy.
9. For this reason, on 2 August 2024, a second opinion was obtained from consultant psychiatrist, Dr U, who formed the view that FXB had ongoing psychotic symptoms with overt delusions about living forever and witchcraft. She was unable to relay her options back to the team or demonstrate any evidence that she understood her options and the risks or benefits associated with these options. FXB changed her mind about keeping the baby or having an abortion multiple times during the interview with no good rationale for changing her mind. Accordingly, Dr U on 2 August 2024 concluded that FXB lacked the capacity to make the decision to terminate the pregnancy.
10. Notably, as recorded above, FXB had been discharged from the mental health unit on 19 June 2024. She was due to have her Clopixol depot on 3 July 2024 and it appears that this did not occur. FXB's first Clopixol depot this admission was received on 25 July 2024 and the second on 7 August 2024. FXB is reported to have experienced frequent bouts of drug induced psychosis for more than a decade. She is insightful to the fact that methamphetamine use precipitates her psychosis, however, is precontemplative with respect to changing her use of substances.
11. As of 15 August 2024, NZL reported that FXB has been consistent for the past week and a half in her wish to terminate the pregnancy. Despite this, NZL told us that he still believes that she lacks the capacity to make the decision on her own as she cannot relay her reasoning in a consistently logical manner and does not demonstrate an ability to weigh up risks and benefits in a consistently logical manner. In addition, even though FXB was referred by the mental health unit to obstetrics and gynaecology for safe and effective antenatal care appointments upon discharge from that hospital, FXB was lost to follow up in the same way that community treatment orders have been unable to be implemented.
12. During the hearing NZL told us that he has known FXB since 5 August 2024. At that time, she was extremely thought disordered and disorganised. He said that FXB will not engage with the mental health team and changes her decisions based upon her needs at the current time. He believes that there is a risk that FXB could change her mind about terminating the pregnancy and he does not believe that she appreciates the reasons why she wants a termination. NZL said that FXB's cognitive function is impaired as a result of chronic schizophrenia compounded by polysubstance abuse. NZL said that although FXB's mental state has improved, he believes that FXB cannot articulate why she does not want to go through with the pregnancy, and he is concerned that she will change her mind if surgery is required or there is too much pain or bleeding. NZL was able to rely upon entries early in the progress notes when, in discussion with the obstetrics and gynaecology team, FXB requested a caesarean section which according to the team was not an option. According to the progress notes submitted to the Tribunal on 12 August 2024, FXB also asked that if the baby survived the termination process could it be placed in an incubator and left to the doctors. At highest, FXB has demonstrated a degree of ambivalence towards the foetus. NZL said that despite having the support of well-trained obstetrics and psychiatric nursing staff and plenty of pain relief options, he is worried that there is a high risk that FXB will change her mind during the medical termination process and considers that it would be in her best interests for the Tribunal to provide consent to special medical treatment on FXB's behalf.
13. Dr T, consultant psychiatrist, participated in the hearing and agreed with NZL. Although FXB's mental state has improved, she remains symptomatic with delusions and a labile mood. Additionally, Dr X considers that FXB has a history of inability to weigh up the risks and benefits of treatment in a consistently logical way as demonstrated by her failure to follow up with treatment for her mental illness in the community, as well as her failure to attend appointments for antenatal care following discharge from the mental health unit. Dr X considered that FXB is unable to relay her reasoning in a consistently logical manner and accordingly, as a result of her continuing condition of mental illness, lacks the capacity to provide informed consent to the termination of pregnancy.
14. We then spoke to Dr W, consultant obstetrician and gynaecologist and Dr V, registrar from the obstetrics and gynaecology team, who completed parts 6-8 of the health professional report dated 16 August 2024 referred to above. The views of the obstetrics and gynaecology team are significant as it will be members of this team who are ultimately seeking the consent to carry out the treatment.
15. Dr V told us that she had met with FXB on three occasions as outlined in progress notes provided to the Tribunal. FXB has consistently requested that the pregnancy be terminated. She does not want to be pregnant. FXB currently has an Implanon device in her left arm which has now worn off and is ineffective. FXB believed that her Implanon lasted for six years and now understands that it is not working. She wants the Implanon removed and a new one inserted, after the current pregnancy is terminated, with local anaesthesia and a small superficial incision. Dr V said that the fact that FXB had the Implanon inserted is consistent with her wish to terminate the pregnancy rather than to continue with the pregnancy and have the baby.
16. Dr V said that she believes FXB has a full understanding of the fact that she is pregnant and the consequences of terminating the pregnancy. Dr V told us that she considers that FXB understands the process of the medical termination of pregnancy, has considered leaving the baby in an incubator for the doctors to deal with as they wish if the baby survives the process, and appreciates the risks involved including bleeding and the potential for surgical removal of the placenta. Dr V told us that based upon her interactions with FXB, she believes that FXB has the capacity to consent to the medical termination of the pregnancy.
17. Dr W, consultant obstetrician and gynaecologist, confirmed that he has met with FXB and reviewed her notes. Dr W said that he believes that despite having a mental illness, schizophrenia, FXB has the capacity to consent to the medical termination of pregnancy. Dr W told us that FXB's pregnancy is progressing unremarkably thus far. He said that FXB demonstrates a full understanding of what is involved in the medical termination of the pregnancy. He said that he and Dr V had explained to FXB the process of Mifepristone then Misoprostol 48 hours afterwards (PV/PO). The treating team explained that the first tablet could be given in the mental health unit and bleeding/labour could occur and FXB would have to be taken to the delivery suite in a timely manner. If labour had not already started, then 48 hours afterwards, FXB would attend the delivery suite and Misoprostol would be administered (PO/PV). This could involve multiple doses. Labouring could involve pain and multiple pain relief options are available. FXB's preferred option at this stage is gas. Dr W explained that bleeding will be involved. He told us that he explained the risks and consequences of the procedure and why alternative procedures were not appropriate. Dr W confirmed that in addition to the use of gas, which is FXB's current preference for pain relief, she will be offered many different options of pain relief and will be well supported during the medical termination.
18. Dr W told us that he satisfied himself that FXB was capable of providing informed consent to the medical termination of pregnancy as she consistently repeated that she wanted the pregnancy to be terminated. He asked her to repeat back to him the nature and effect of the procedure and the risks and consequences associated with the termination. FXB was able to do this consistently to his satisfaction. When asked whether FXB's request for the baby to be placed in an incubator for the doctors to determine its future if it survived the termination of pregnancy impacted his views with respect to FXB's capacity to consent to the special medical treatment, Dr W said no. He told us that he had heard stranger things in his experience as an obstetrician and a gynaecologist. In his interactions with FXB and from having seen the notes, his opinion is that FXB has consistently wished to terminate the pregnancy. This is consistent with the fact FXB has an Implanon inserted and, when made aware that it no longer works, has asked for it to be replaced as soon as possible. FXB has demonstrated a lack of interest in the baby or a desire to be pregnant. She is far more focused upon the negative impact of the continued pregnancy upon her lower back pain and her strong desire for discharge. FXB has very limited involvement with her 11-year-old child who lives in the care of her mother. Dr W was very clear that it is his view that FXB has the capacity to consent to the medical termination of pregnancy and understands the procedures, risks and benefits associated with the treatment.
19. Ms Z, the mother of FXB, participated in the hearing from Queensland. We were told that she has spoken regularly to FXB during her hospitalisation. Ms Z told us quite clearly that FXB does not want this baby. Ms Z said that FXB "will dump it on my doorstep". Ms Z was adamant that FXB does not want children, she wants to live her own life and will not change her mind in this regard. Her daughter wants an "abortion". Ms Z said that FXB is very strong-minded about the pregnancy and has not seen her birth daughter in a number of years. Ms Z believes that FXB is capable of making the decision about the medical termination of pregnancy.
20. We also spoke to Ms S, who was part of the antenatal team FXB was referred to upon discharge from the mental health unit. Ms S told us that she had not had the opportunity to meet with FXB in between discharge from the mental health unit and admission to the public hospital. Ms S was unable to comment upon FXB's ability to provide informed consent to the medical termination of pregnancy.

Submissions of the Separate Representative

1. At the commencement of the hearing Ms Muir told us that her initial views having taken instructions from FXB were that FXB had a good understanding of the medical termination of the pregnancy, the pros and cons of the termination and the implications of the procedure. Ms Muir told us that FXB had explained to her that she would not be able to carry a baby to full term due to problems with her lower back and she has no interest in having a baby. FXB told her that if the baby were to survive the pregnancy it would go into the care of the Department of Communities and Justice as she does not want to keep the baby at all. Ms Muir told us that FXB told her that she had initially contemplated having the baby induced at 24 weeks when it was potentially viable and kept in an incubator so that it then it could be given away but had decided that she is not interested in hanging around hospital any longer. FXB believes that she is at her psychiatric baseline and would have been discharged if she was not pregnant. Ms Muir told us that she had discussed a variety of scenarios, decisions and options with FXB and in her view, FXB understands the general nature and effect of the proposed treatment and is capable of consenting to the proposed treatment.
2. At the conclusion of the hearing, Ms Muir confirmed that her position has only been reinforced. FXB does have a continuing condition which has improved and is at its baseline.
3. Ms Muir's submissions were to the effect that the evidence, written and oral, supports a finding that FXB has the capacity to consent to the medical termination of the pregnancy by the administration of Mifepristone then Misoprostol 48 hours after (PV/PO) and what that treatment involves. Ms Muir said that there is nothing to suggest that FXB wants this pregnancy or this baby. FXB consistently says that she does not want to be pregnant with this baby, she wants to be out of hospital, and she is concerned about the continued impact of the pregnancy upon her lower back pain.
4. FXB may change her mind during the course of the treatment and that does not mean that she lacks the capacity to provide informed consent. As an involuntary patient detained under the Mental Health Act, any surgical treatment and FXB's ability to leave hospital is to be dealt with pursuant to the provisions of that Act.
5. In particular, Ms Muir highlighted the evidence of Dr W and Dr V from the obstetrics and gynaecological team, representing the medical team who will be carrying out the treatment and seeking consent for treatment. Dr W and Dr V were both clear in the reasoning behind their shared opinion that FXB is able to arrive at a decision, weigh up the information that is given to her and remember that information. Dr W's information was helpful in this respect given that he has explained the options, procedures, and potential complications to FXB and had her repeat them back to him and believes that she understands these issues.
6. The test for incapacity is whether FXB is incapable of understanding the general nature and effect of the treatment, not whether she might change her mind if it becomes too painful or psychiatrically distressing.
7. Ms Muir submitted that we should find that FXB does have capacity to make her own decision about the medical treatment proposed.

Consideration

1. As previously stated, the critical issue in this matter concerned FXB's ability to consent to the proposed treatment: a termination of pregnancy by means of the administration of Mifepristone followed by Misoprostol 48 hours afterwards (PV/PO) with potentially multiple doses of Misoprostol required.
2. The starting point is that as an adult, FXB is presumed to have the necessary capacity to consent to the proposed treatment. It is only if the evidence supported a finding that FXB was incapable of understanding the general nature and effect of the proposed treatment that the provisions of Pt 5 of the Guardianship Act would apply to her.
3. We therefore needed to consider whether the evidence satisfied us that FXB 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 v A [2009] NSWSC 761 at [23]-[25] (McDougall J)).
4. 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.
5. FXB very clearly does not wish to proceed with her pregnancy and does not want to keep the baby. FXB knows that proceeding with the pregnancy will cause her further lower back pain about which she is very concerned. FXB has previously experienced childbirth and has an understanding of what is involved. FXB has considered her pain relief options and preferences. FXB has raised other options such as a caesarian with the obstetric and gynaecological team and has been told why this is not recommended in her circumstances. She has been able to repeat back to Dr W and Dr V the nature and effect of the proposed treatment and the risks and implications of what is involved.
6. We acknowledged that FXB's request to keep the baby in an incubator for the doctors to deal with if it survived the termination is unusual when discussing the medical termination of a pregnancy, however we also accept Dr W's evidence that he has heard stranger requests in such discussions. We also heard FXB refer to her previous experience of giving birth as "heavenly". She acknowledges that she has no interest in having a baby and we understand that she does not have frequent contact with the child who is in the care of her mother. Ms Z knows FXB best and is adamant that she is consistent in her wish to terminate the pregnancy. Mr Y is also reported to be in favour of the termination although his views with respect to FXB's capacity are unknown. It is also important to note that FXB has an Implanon inserted and incorrectly believed that it was still working when she became pregnant. She has requested that a new one be inserted following the termination of the pregnancy. It is clear that FXB's intention is to avoid becoming pregnant.
7. We accept NZL's evidence that FXB at her baseline presents with a degree of thought disorder, mood lability and delusions as a result of chronic schizophrenia with a mood component. We accepted that FXB's mental state is now at her baseline as a result of receiving safe and effective treatment in a low stimulus environment. We accepted that FXB has a continuing condition and that her symptoms have improved since her admission on 17 July 2024 to the public hospital in the context of methamphetamine induced psychosis and non-compliance with prescribed medications. We appreciate that FXB has been non-compliant with prescribed medications in the community which has resulted in a deterioration in her mental state, particularly in the context of methamphetamine use, and a readmission to hospital. Accordingly, we accept NZL's evidence that FXB's mental state is now at its baseline as her medication is at its therapeutic levels, she is in a low stimulus environment in a hospital away from methamphetamine. FXB's mental state has improved significantly since admission.
8. We were satisfied that FXB 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.
9. We are satisfied that FXB comprehends the significance of the termination procedure and that she does not wish to be pregnant or to have the baby. We are satisfied that she has, with the support of health professionals, considered and weighed information provided to her about the treatment and has expressed a clear view that she wants the pregnancy terminated.
10. In these circumstances, the Tribunal was not satisfied that FXB is incapable of understanding the general nature and effect of the proposed treatment.
11. As such, FXB is not incapable of giving consent to the carrying out of the proposed medical treatment: the Guardianship Act, s 34(1). Part 5 of the Guardianship Act does not therefore apply to FXB, and the application is dismissed.

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 October 2024