JZL [2021] NSWCATGD 13

The hearing

1. At the end of these Reasons for Decision is a list of witnesses who attended the hearing. [Appendix removed for publication.]

WHAT MUST BE PROVED?

1. If a person is incapable of giving informed consent to special medical treatment then only the Tribunal may provide consent: Guardianship Act 1987 (NSW), s 36(1)(b). Such treatment is defined in s 33(1) of the Guardianship Act as including: "any treatment that is intended, or is reasonably likely, to have the effect of rendering permanently infertile the person on whom it is carried out"
2. Under s 33(2) of the Guardianship Act, a person is incapable of giving consent to the carrying out of medical treatment 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 the treatment being carried out.
3. The Guardianship Act requires that the Tribunal must not give consent to the carrying out of special treatment unless it is satisfied that the treatment is necessary to (a) save the patient's life or (b) to prevent serious damage to the patient's health: Guardianship Act, s 45(2).
4. The Guardianship Act imposes a further consideration on the Tribunal in s 44 of that Act. That section directs that if consent is to be given to medical or dental treatment, the Tribunal must be satisfied that it is "appropriate for the treatment to be carried out" and must have regard to the views of the patient, the person who is proposing that medical treatment be carried out on the patient and any persons responsible for the patient.
5. The Tribunal must also take into account matters set out in s 42 of the Guardianship Act which are: 1. the grounds on which it is alleged that the patient is a patient to whom this Part applies, 2. the particular condition of the patient that requires treatment, 3. the alternative courses of treatment that are available in relation to that condition, 4. the general nature and effect of each of those courses of treatment, 5. the nature and degree of the significant risks (if any) associated with each of those courses of treatment, and 6. the reasons for which it is proposed that any particular course of treatment should be carried out.
6. In summary, therefore, the issues for determination by the Tribunal were as follows: 1. Is the treatment proposed by the applicant "special medical treatment"? 2. Is JZL incapable of giving consent to the proposed special treatment? 3. Is the treatment necessary to save JZL's life or is the treatment necessary to prevent serious damage to JZL's health? 4. Is the proposed special treatment the most appropriate form of treatment for promoting and maintaining JZL's health and well-being?

Is the proposed treatment 'special treatment'?

1. Of relevance to the current application, special medical treatment is defined in s 33 of the Guardianship Act as including any treatment that is intended, or is reasonably likely, to have the effect of rendering permanently infertile the person on whom it is carried out.
2. In his application SBC describes the treatment as laparoscopy with total abdominal hysterectomy and bilateral salpingo-oophorectomy. In a Health Professional Report Form for Special Medical Treatment Dr Y, Resident Medical Officer for Dr Z, describes the treatment as surgical removal of pelvic mass which may include removing uterus and ovaries.
3. During the hearing EYU, registrar to Dr Z, confirmed the intention is to remove both ovaries, which alone would render JZL permanently infertile. However it is also considered necessary to remove her uterus, which will also render her permanently infertile.
4. EYU indicated that the full description of the treatment being proposed was: Mid Line laparotomy with removal of pelvic mass, bilateral salpingo-oopherctomy and hysterectomy with peritoneal washing and omental biopsy.
5. We were satisfied that the proposed treatment will render JZL permanently infertile and that therefore it is special medical treatment.

What is the particular condition of the patient that requires treatment?

1. We were told that JZL has a large mass in her lower abdomen of a size that is similar to a 34-week pregnancy. The mass is affecting her kidney function and causing kidney damage as well as causing her legs to be ulcerated and to seep fluid.
2. There is a possibility that the mass could be of malignant neoplastic origin. It has been growing over a number of years and if not removed it would continue to grow, obstruct the ureters and impede the venous and lymphatic return from the lower body with increasing morbidity in the form of kidney disease, increased problems with leg ulcers and the possibility of death due to sepsis or due to a pulmonary embolism.

Is JZL incapable of providing consent to the proposed treatment?

1. Section 33(2) of the Guardianship Act provides that a person is incapable of giving or withholding consent to medical or dental treatment 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 the treatment being carried out.
2. In the Health Professional Report Form for Special Medical Treatment, Dr Y states that JZL is not able to consent to the treatment because she does not understand the nature of the mass that needs to be removed and does not understand the possibility of it being of neoplastic origin. She believes that large muscles are causing her health problems. She also has ongoing delusions including that her food and water are poisoned.
3. Dr X, a Consultant Psychiatrist said that she had reviewed JZL on the morning of the hearing. She provided the following information: 1. JZL has schizophrenia and has been treated with antipsychotic medication for a number of years. She has shown a partial response to medication. Her current symptoms include feeling unsafe with people she meets or knows and not believing that they are who they say they are. 2. When seen on the morning of the hearing JZL said she was concerned about the cleanliness of the bed sheets and she believed that they might be causing the problems with her legs. When told that doctors believed there was another explanation and that she could be shown X-rays that show the cause, she continued to state that unclean sheets were causing the weeping of her leg wounds. 3. In Dr X's view, JZL did not understand or have any insight into the nature of her condition, the nature of the treatment or the effects of the treatment or of not having the treatment. She also said that JZL did not believe that the doctors that she was speaking were who they said they were. 4. Dr X indicated that JZL had previously been concerned about germs in the water and had wanted to bathe in bottled water and that her concern about sheets is consistent with her past concerns about germs. 5. Dr X said that in her view JZL's mental health issues prevent her from accepting and understanding information.
4. During the hearing JZL made comments to the following effect: 1. she was unable to have babies because someone had "pulled my womb out" and because her brain is frozen; 2. "I have a fallopian tube or belly button, but I do not need it taken out"; 3. she has no arteries in her stomach because when she was two or three years old "they took out my intestines and organs"; 4. in 1998 "they" might have performed a hysterectomy and so there was "nothing you can take".
5. JZL also told us that she had seen photographs and she was not who it was thought she was and there was a case of mistaken identity.
6. When asked what she thought would happen if she did not have the surgery, JZL replied to the following effect: 1. She would avoid pain and she does not cope with pain. 2. She has had a number of health issues in hospitals where there is no healthy ventilation with oxygen and that has resulted in her loss of brain cells, and she does not want to be in that situation. 3. She would still have swollen legs if she did not have the surgery, but the swollen legs were caused by the hospital bed linen and the proposed treatment would not alleviate that. She needed antibiotic antiseptic wash for her legs. 4. Her problem might be related to having too much Power Aid with too much glucose and that she needed to have less sugar.
7. JZL said that she was not concerned that the proposed treatment would render her permanently infertile. She said that she did not want children and that her brain was "not good enough" to procreate.
8. We were satisfied on the evidence of Dr X as well as the views expressed by JZL that JZL does not understand her current condition or the need for the treatment or the nature and effect of the proposed treatment. Accordingly we were satisfied that she is not able to consent to the treatment.

What are the alternative options for treatment that are available?

1. Dr Y indicates that alternatives would be: 1. The non-surgical treatment of the mass. However that would risk further growth of the mass and obstruction of the inferior vena cava, the main blood vessel returning blood to the heart from the legs and lower body. 2. Treating only the pressure effects of the pelvic mass. This would require continuous anticoagulation therapy, which would result in the risk of bleeding and JZL has not consented to anticoagulation, and potentially inserting a filter into the inferior vena cava to prevent a clot travelling to the lungs and causing pulmonary embolism. 3. EYU described the alternative options as: 4. Not actively treating the mass and treating its effects. This risks significant increased morbidity and progression of the mass. 5. Stenting the inferior vena cava and the ureter to prevent complete obstruction. This also risks significant increased morbidity and progression of the mass.
2. EYU was of the view that the proposed surgery is the most appropriate treatment for the condition and to prevent serious risk to JZL's health.

Why is it proposed that the treatment should be carried out?

1. EYU said that the treatment proposed is to remove the pelvic mass, both ovaries and the uterus. Due to the large size of the mass it is not possible to determine which ovary is involved or if the mass arises from the uterus. Whilst it is likely to arise from one ovary only, the problem could recur in the remaining ovary if it were not removed, and is proposed to remove the uterus as it cannot be ruled out as a possible cause of the mass.

Are there any risks associated with the proposed treatment?

1. In addition to the usual risks of anaesthetic, Dr Y lists as possible risks: bleeding, infection, wound breakdown, damage to local structures such as ureter, blood vessels and bowel, failure to remove all the affected tissue and the need for further procedures.
2. During the hearing EYU: 1. observed that JZL's pre-surgery health is not good because of elevated body habitus and deep vein thrombosis. Her blood pressure has been normal and she has had some elevated blood sugar levels but she has resisted having bloods taken and there has only been one blood analysis. It is hoped to perform a lower limb Doppler ultrasound; 2. spoke of the risks to JZL post-surgery that might arise from her mental health condition, and these could include difficulties in post-operative follow-up resulting from her paranoia. She said that it is likely that JZL would need up to week in an intensive care ward and then would need four to six weeks of post-operative care.

Is the proposed treatment the most appropriate treatment?

1. We have taken into account the alternative treatments outlined by the medical practitioners and we are satisfied that the alternatives do not adequately treat the pelvic mass that is causing other serious health issues and that as a result they carry with them the risk of serious morbidities and possible death. Having considered the alternatives we are of the view that the proposed treatment is the most appropriate treatment.

How will the proposed treatment promote and maintain the patient's health and wellbeing?

1. We are satisfied on the evidence that the treatment is necessary to treat a life threatening condition and therefore it will promote JZL's health and wellbeing.

Is the proposed treatment necessary to save the patient's life or prevent serious damage to health?

1. We are satisfied that the treatment is necessary to prevent serious damage to JZL's health in the short term and, over the longer term, to prevent the risk of death.

Conclusion

1. Taking into account all of the matters set out above we consented to the proposed treatment. As JZL is currently hospitalised, and taking into account the risks associated with her condition, it was our view that the treatment should be completed within a month.
2. Whilst we were not satisfied that JZL could understood the proposed treatment or the reasons for it, we noted that she did indicate that she was opposed to treatment. As we were satisfied that any such objection was made in the absence of understanding of the nature or effect of the treatment, we were satisfied that we should stipulate that our consent is effective even if JZL objects to the treatment.

What did the Tribunal have to decide?

1. The questions which had to be decided by the Tribunal were:

• Is JZL someone for whom the Tribunal could make an order because she has a disability which prevents her from being able to make important life decisions?
• Should the Tribunal make a guardianship order and if so, what order should be made?
• Who should be the guardian?
• How long should the order last?

Is JZL someone for whom the Tribunal could make an order because she has a disability which prevents her from being able to make important life decisions?

1. Section 14 of the Guardianship Act provides that the Tribunal may make a guardianship order for a person if it is satisfied that she is "a person in need of a guardian". A person in need of a guardian is "a person who because of a disability is totally or partially incapable of managing his or her person": Guardianship Act, s 3(1). A person with a disability is a person who is: 1. intellectually, physically, psychologically or sensorily disabled; 2. of advanced age; 3. a mentally ill person within the meaning of the Mental Health Act 2007 (NSW) ; or 4. otherwise disabled; and by virtue of that fact is restricted in one or more major life activities to such an extent that he or she requires supervision or social habilitation: Guardianship Act, s 3(2).
2. The term "social habilitation" is not defined in the Act. In P v NSW Trustee and Guardian [2015] NSWSC 579, Lindsay J considered its meaning in the context of s 3(2) of the Act, at [303] "The expression 'social habilitation' (in the context of references to 'disability', 'restricted', 'major life activities' and the word 'requires') may be taken to refer to a need for services to help a person to be, or become, able to function normally in community with others."
3. We placed weight on the views of Dr X as outlined in the Reasons for Decision in respect of the special medical treatment and in particular Dr X's view that JZL lacked an understanding of her health and medical needs.
4. We also considered JZL's comments in relation to the treatment and her beliefs about previous medical treatment.
5. We are satisfied on that evidence that due to her mental illness JZL is restricted in properly understanding her circumstances and managing her lifestyle including making important life decisions. She is, therefore, a person for whom the Tribunal could make a guardianship order.

Should the Tribunal make a guardianship order and what order should be made?

1. The Tribunal must consider all of the following matters set out in s 14(2) of the Guardianship Act before exercising its discretion to make a guardianship order: 1. the views (if any) of: 1. the person; 2. the person's spouse; 3. the person's carer; and 1. the importance of preserving the person's existing family relationships; 2. the importance of preserving the person's particular cultural and linguistic environments; and 3. the practicability of services being provided to the person without the need for the making of such an order.
2. These matters have no hierarchy or weighting and each is a mandatory consideration. However, the Tribunal must undertake a balancing exercise for its consideration of the matters in s 14(2) of the Guardianship Act. When undertaking this task the Tribunal is guided by the principles that are set out in s 4 of the Guardianship Act (see IF v IG [2004] NSWADTAP 3).
3. In her application for the appointment of a guardian, MAL states that there are medical decisions required for JZL that cannot be made informally.
4. As is indicated in the Reasons for Decision in respect of the consent to the special medical treatment: 1. EYU indicated that JZL has refused some pre-operative assessments that are considered necessary. EYU was also concerned that JZL will need some time in intensive care and then some nursing assistance when she returns home from hospital. She was concerned that JZL might not accept such treatment and services. 2. JZL has a number of beliefs about her past medical treatment and health circumstances including believing that reproductive organs might have been removed, that her brain is frozen and that she affected by a lack of oxygen. She lacked insight into the cause of her current medical issues and was of the view that they might be caused by tight muscles, too much Power Aid or unclean sheets. She was also opposed to treatment proposed to treat the pelvic mass and she believed that there was some mistaken identity issue and she was not who it was said she was.
5. We were satisfied that JZL's mistaken beliefs about her health and medical status and identity issues could result in her refusing medical treatment and services that are necessary for her pre and post-operative care. Accordingly we were satisfied that there is a need for a guardian to make decisions about those issues and that the guardian needs to override JZL's objections to treatment. MAL said that she believes that she will need to override JZL's objections to treatment.
6. We are required to consider the effect of an order on JZL's family relationships. MAL said that whilst there will be some tension resulting from her overriding JZL's objections to treatment she considers that she will be able to manage that situation.
7. There was no evidence of any cultural or linguistic matters that would be adversely affected by making a guardianship order.
8. We decided on the basis of all of this evidence that a guardianship order should be made appointing a guardian to make decisions for JZL about her health care, services and medical and dental treatment and authorising the guardian to override her objections to medical treatment.

Who should be the guardian?

1. The Tribunal has to be satisfied that any person appointed as a private guardian meets the following requirements in accordance with s 17(1) of the Guardianship Act. S/he must: 1. have a personality generally compatible with the personality of the person under guardianship; 2. have no undue conflict of interest (particularly financial) with those of the person; and 3. be able and willing to exercise the functions of the order.
2. In deciding whether a person is able to undertake the role of guardian, the Tribunal must consider whether the proposed guardian is able, having regard to the circumstances, to exercise the functions in accordance with the principles set out in s 4 of the Guardianship Act (C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep) and Re B [2011] NSWSC 1075, [66]).
3. In P v D1 & Ors [2011] NSWSC 257 the Supreme Court noted the importance of a proposed guardian being able to demonstrate insight and explain plans for how to act as guardian objectively and without conflict of interest.
4. The Tribunal is not able to appoint the Public Guardian as a person's guardian if there is a private person who can be appointed: Guardianship Act, s 15(3).
5. The Supreme Court has held that: the proper meaning to be given to the section is to read it as saying that the Public Guardian should not be appointed in circumstances in which an order can properly be made in favour of another person. That requires not only that the person be willing, reliable and responsible, but that the appointment will result in the policy considerations and principles set forth in the Act being given effect (W v G [2003] NSWSC 1170, [25]).
6. MAL proposed that she be appointed as the guardian. JZL said that she objected to the appointment of her mother because of issues between them over the past one to two years. However as indicated above JZL was also of the view that there had been a mistake about her identity. Whilst we took into account JZL's views, we were not able to place weight on her comments as evidence of an ongoing poor relationship between her and MAL or incompatibility in their personalities.
7. We were satisfied that MAL has been involved in consultation with JZL's treating practitioners and is in a position to consider their advice and make the decisions encompassed in the guardianship order. There was no evidence of any conflict of interests between JZL and her mother.
8. On the basis of this evidence, we were satisfied that MAL meets the requirements to be appointed as the private guardian for JZL.

How long should the order last?

1. An initial guardianship order can be made for a period of up to one year from the date on which it was made. We made the order for six months only because the reasons for the order are related to JZL's pre and post-operative care and in our view once those matters are complete it will be appropriate to review the ongoing need for the order.

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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: 12 October 2021