NGN [2020] NSWCATGD 100

The hearing

1. Given the stage of NGN's pregnancy and the need for the matter to be considered on an urgent basis, the hearing was listed on 5 June 2020 which was the day after the application was received.
2. On the same day that the application was received, the Tribunal appointed a separate representative for NGN. Ms Isabel Reed appeared in this role at the hearing. Ms Reed told us that she had attempted to speak with NGN prior to the hearing but that NGN declined to do so. Ms Reed did, however, speak with TZE. Ms Reed had also left a message to speak with the original applicant, Dr Z, but the urgency with which the hearing was listed meant that she had been unable to speak with her prior to the commencement of the hearing.
3. TZE was joined as a party to the special medical application.
4. The parties to the proceedings were therefore NGN, EBC and TZE: Civil and Administrative Tribunal Rules 2014 (NSW), r 27.
5. Due to the COVID-19 pandemic as well as where the parties were situated (at the public hospital in another suburb in regional NSW), the hearing proceeded without the participants attending in person before the Tribunal. Instead, all participants took part by way of videoconference. In addition to NGN, her grandmother and the substitute applicant, the following people took part in the hearing:

• Ms Y, Social Worker in Fetal Medicine
• Ms X, Aboriginal Liaison Officer, at the public hospital
• Dr W, Senior Staff Specialist and Clinical Director, Child and Adolescent Mental Health Service, Hunter New England Local Health District
• Isabel Reed, separate representative

Overview of evidence

1. NGN was present throughout the hearing but was reluctant to speak directly to us. This was consistent with other evidence that NGN has difficulty speaking with strangers. We were also conscious that these proceedings required discussion about personal and intimate issues related to NGN's pregnancy, and that it is likely that many young women facing these issues would experience similar difficulties discussing them with a Tribunal panel of unknown people. Added to this is the difficulty of a hearing conducted by way of videoconference.
2. We were nevertheless able to obtain NGN's views about the proposed termination procedure by way of her grandmother relaying the conversations she had had with NGN about these issues. NGN was invited by us to indicate whether or not she agreed with what her grandmother told us by nodding or shaking her head. At times she also spoke directly with us, albeit to a limited extent.
3. By this process, and the evidence given directly by TZE, we understood that since having it confirmed three to four weeks ago that she was pregnant, NGN had consistently told her grandmother and the health professionals that she knows well in regional NSW that she did not want to go ahead with her pregnancy. When an ultrasound conducted at a medical clinic confirmed her pregnancy, we were told by TZE that the attendant nurse discussed various options. This was in the presence of TZE and NGN's support worker at a not-for-profit service provider, Mr V. The options discussed included keeping the baby and possibly adopting it out. According to TZE, NGN "indicated strongly that she didn't want this baby" and did not want to consider adoption. As NGN was by that time too advanced in her pregnancy to have a termination procedure at that clinic, arrangements were made for NGN and her grandmother to travel to the public hospital in the other regional NSW suburb to undergo the procedure.
4. TZE told us that she has spoken at great length with her granddaughter about NGN's wishes. They have also discussed at length the nature of the procedure as explained by the health professionals NGN had met with in regional NSW including what would happen during the termination procedure and possible side effects.
5. In TZE's view, NGN had a good understanding of all of these issues. She also told us that NGN had done her own research at home by searching out You Tube videos on termination procedures and related issues. TZE said that her granddaughter did this by herself. As a result of watching these videos, TZE told us that NGN had talked to her about the emotional problems she thinks would be caused if she did not have the termination but had the baby adopted. These problems included her worry that the child would eventually want to look for her which would cause emotional problems for NGN and the child. TZE told us that NGN was removed from her mother's care as a young child and was placed in the care of TZE. TZE felt that this has probably given her granddaughter some understanding of the emotional issues involved.
6. As previously noted, we also heard evidence that after arriving from regional NSW on 3 June 2020, NGN and her grandmother met with members of the treating team at the public hospital on 4 June 2020 from about 9:30am through to 3pm or 4pm. The members of the treating team in the morning were Dr Z, Ms X and Ms Y. NGN and her grandmother met with Dr W and his colleagues at the end of the day.
7. Ms X and Ms Y gave evidence that was uncontested and consistent with each other to the effect that Dr Z explained in detail the nature of the proposed termination procedure (as summarised at [11] above), the risks and potential side effects.
8. Ms Y told us that in subsequent conversations with NGN that day, NGN was able to talk about the process as explained by Dr Z; she seemed to have taken in the information given to her; and also explained some of the context for her reasons for wanting to terminate her pregnancy. This included the difficult relationship she has with the father of her baby and the emotional difficulties that would result if she had the baby and then had the baby adopted.
9. Ms X gave similar evidence.
10. In his report dated 5 June 2020, Dr W outlined that he first met with Dr Z who explained the procedure of medical termination of pregnancy and what it entailed. Dr W explained that Dr Z told him that NGN "was able to establish rapport after a while and that she has been very 'chatty' with her. She was able to explain the procedure of medical termination of pregnancy to her and [NGN] was able to narrate the procedure back to [Dr Z]. [Dr Z] felt that [NGN] understood what she was talking about and felt that she was willing to have the medical termination of pregnancy".
11. Following this, Dr W met with NGN, her grandmother as well as Ms X. After setting out in some detail the nature of that meeting, Dr W's report concluded with the following impressions:

• NGN was able to take in the information provided to her by Dr Z, but was not able to demonstrate that back to him despite spending some time with her establishing rapport and offering her a female clinician to talk with
• NGN's understanding of the proposed termination procedure is just factual which means that she can retain information. However, she does not have the capacity to weigh up risks and benefits to make an informed decision to consent to the procedure
• That NGN does not have the capacity to consent to the procedure and it is because of her mild intellectual disability that she has limited capacity to consent to such a procedure. Social and communication difficulties due to autism spectrum disorder may also be impacting on her ability to demonstrate

1. Dr W was present throughout the hearing and heard the evidence of each of the other participants. After we heard from NGN and her grandmother about the exhaustion NGN felt at the end of the day when she met with Dr W; and the evidence of Ms X and Ms Y as to the way in which NGN was able to recount not only the procedure as explained by Dr Z but also the potential risks and benefits, we asked Dr W whether it was still his view that NGN lacked the capacity to consent to consent to the procedure. Dr W responded that based on the information he was able to obtain from NGN during the consultation, he believes his assessment was correct at the time. However, having now heard from the other participants Dr W accepted that "most aspects of capacity may be met".

Separate representative's submissions

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

• Having regard to all of the evidence and in particular the evidence of TZE as to all of the discussions she has had with NGN, NGN has an understanding of the general nature and effect of the proposed termination
• NGN has clearly been trying to satisfy herself that she understands all of the consequences of the procedure
• It is significant that NGN has independently sought information about the procedure by accessing information on the internet and through YouTube. This demonstrates that she has an understanding of what is involved

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

1. An adult is presumed to have the capacity to make decisions that affect his/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 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: "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). 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. 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 previously stated, the critical issue in this matter concerned NGN's ability to consent to the proposed treatment.
2. The starting point is that as an adult, NGN is presumed to have the necessary capacity to consent to the proposed treatment. It is only if the evidence supported a finding that NGN 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.
3. We therefore needed to consider whether the evidence satisfied us that NGN 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)).
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. NGN has consistently expressed the view that she does not wish to proceed with her pregnancy. We accepted that prior to travelling to the public hospital with her grandmother, NGN had discussed in some detail the steps that would need to be taken for her pregnancy to end. Further, on the day prior to the hearing and following her meeting with Dr Z, Ms Y and Ms X, NGN recounted to her grandmother the detailed steps that Dr Z explained would take place. The view of all of the members of the treating team at the public hospital was that NGN was able to retain the information provided by Dr Z and that she understood the procedures involved.
6. As referred to earlier, Dr W expressed concern in his written report that whilst NGN was able to communicate this information back to Dr Z and her grandmother, she had been unable to do so to Dr W when he met with her late that same day. He expressed the view that NGN did not have the capacity to weigh up risks and benefits to make an informed decision to consent to the procedure. However, as noted previously, by the time of this hearing and after listening to the evidence provided by others as to the level of exhaustion NGN was experiencing by the time of that meeting and that she had spent much of the day talking to others about all aspects of the procedure, he did not dispute that NGN had the necessary capacity to consent to the treatment.
7. Whilst NGN did not outline directly to us possible adverse consequences of the proposed termination procedure, we accepted that these had been explained to her by others, she had been able to recount these back to the original applicant and her grandmother, and she appeared to understand these matters.
8. 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."
9. We accepted the evidence that NGN has consistently provided to others a number of reasons for wanting to end her pregnancy. We also accepted the evidence that NGN has undertaken of her own volition internet research into the issues surrounding the termination of a pregnancy as well as the possible consequences of proceeding with the pregnancy.
10. We formed the view that NGN 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.
11. We needed to be satisfied that NGN 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). 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 NGN to undergo this procedure. The person who has the closest relationship with NGN, namely her grandmother, is highly supportive of NGN and respects her wishes and views. There was nothing from this evidence to indicate to us that NGN's capacity to provide consent to this treatment is impeded by TZE's influence or by any other person.
12. We accept that NGN has a diagnosis of a mild intellectual disability and autism. We also note that a guardianship order was made as recently as April 2020 in which the Tribunal arrived at the conclusion that NGN had impaired decision making such that a guardian could be appointed for her. The function of medical decision making was also included in that order, with the guardian given "the authority to make substitute decisions about proposed minor or major medical treatment for NGN where NGN is not capable of giving a valid consent".
13. 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 had to consider whether, in relation to this particular decision concerning the proposed termination procedure, NGN was incapable of understanding the general nature and effect of the treatment. In our view, NGN's intellectual disability and autism have not impeded her ability to clearly explain to others over a period of time that she wishes to end her pregnancy. There was little doubt in the evidence that NGN 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. By the time of the hearing, and after hearing more about the context in which NGN participated in the meeting with Dr W, no-one in the treating team contested the view that NGN understood the procedure and possible side effects.
14. Based on this evidence, we formed the view that NGN 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. For the reasons discussed, we were satisfied that NGN 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 NGN has, with the support of her grandmother and the health professionals around her, considered and weighed information provided to her about the treatment and has expressed a clear view as to the treatment that she wishes to undergo.
15. In these circumstances, the Tribunal was not satisfied that NGN is incapable of understanding the general nature and effect of the proposed treatment.
16. As such, NGN 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 NGN and the application was 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 November 2023