Perry (a pseudonym) [2025] NSWCATGD 15; (13 August 2025)

1. Any treatment that involves the use of androgen-reducing medication for the purpose of behavioural control is "special treatment": Guardianship Act 1987 (NSW), par (c) of definition of special treatment in s 33(1); Guardianship Act, s 45(3)(b); Guardianship Regulation 2016 (NSW), cl 14(b).
2. Contained in Pt 5 (Medical and Dental treatment) of the Guardianship Act, s 35 makes it an offence for a person to carry out treatment, including special treatment, on "a patient to whom this Part applies" unless (a) consent for the treatment has been given in accordance with this Part, or (b) the carrying out of the treatment is authorised by this Part without any such consent.
3. Part 5 of the Act applies to a patient who is over the age of 16 years and is incapable of giving consent:

34 Application of Part

(1) This Part applies to a patient -

(a) who is of or above the age of 16 years, and

(b) who is incapable of giving consent to the carrying out of medical or dental treatment.

...

1. Section 33(2) deems a person to be "incapable of giving consent to the carrying out of medical ... treatment" for the purpose of Pt 5, if the person:

(a) is incapable of understanding the general nature and effect of the proposed treatment, or

(b) is incapable of indicating whether or not he or she consents or does not consent to the treatment being carried out.

1. Only the Tribunal may consent to the carrying out of special treatment or on behalf of a patient to whom Pt 5 of the Guardianship Act applies: s 36(1)(b).
2. An adult is presumed to have the capacity to consent to or to refuse medical treatment unless or until that presumption is rebutted: Re MB [1997] 2 FCR 514 at 553; Hunter and New England Area Health Service v A by his tutor T [2009] NSWSC 761; (2009) 74 NSWLR 88 (Hunter) at [23]; Application of a Local Health District; Re a Patient Fay [2016] NSWSC 624 (Re Fay) at [35].
3. In Hunter, McDougall J observed at [24] that there is a scale or spectrum of capacity. The nature of the decision and its importance are both highly relevant to any decision-making process and an assessment of capacity.
4. If a person is unable to comprehend and/or retain information which is material to the relevant decision, in particular the consequences of the decision, or the person is unable to use and weigh the information as part of the process of making the decision, then generally the person will be seen as incapable of exercising their right of self-determination or making the subject decision: Re Fay at [37].

1. On 13 March 2025, Dr Ferdinando, a forensic psychiatrist with the TRC, conducted a capacity assessment and concluded that Perry possesses the capacity to consent to the proposed treatment. Dr Ferdinando wrote that Perry:

"[D]emonstrates a clear understanding of the treatment, its potential benefits and risks, and the implications for him. His decision-making process is rational and consistent with his expressed goals."

1. Under the headings, "understanding of information" and "appreciation of situation and consequences", Dr Ferdinando wrote that Perry:

(1) demonstrates a good understanding of cyproterone acetate's purpose, stating that it is used to "reduce sex drive in men when it is causing problems". He also says "I would rather have man boobs than end up in prison";

(2) can identify the intended effect of the medication, stating that it "helps you think about sex less often";

(3) acknowledges that the medication can take several weeks to be effective;

(4) correctly identifies potential side effects, including weight gain, hot flushes, and changes in hair pattern;

(5) is aware of the need for regular blood tests to monitor his liver function and other parameters;

(6) demonstrates insight into his hypersexuality, acknowledging that it has negatively impacted his past relationships and contributed to his offending behaviour;

(7) expresses a strong desire to manage his sexual urges and maintain a healthy, monogamous relationship;

(8) acknowledges the potential benefits of cyproterone acetate in his specific situation, particularly in reducing his sex drive and helping him manage his behaviour;

(9) demonstrates awareness of the potential risks and side effects, expressing concerns about weight gain and bone density loss.

(1) Perry can weigh the potential benefits of cyproterone acetate against the potential risks;

(2) Perry has articulated a clear rationale for wanting to try the medication, stating that he wants to avoid returning to jail and improve his relationships;

(3) Perry's reasoning aligns with his stated goals of reducing his sex drive, managing his behaviour, and maintaining a stable relationship;

(4) Perry clearly expresses his desire to commence cyproterone acetate treatment;

(5) Perry's choice appears to be voluntary and free from coercion;

(6) Perry is not experiencing any acute psychotic symptoms that might impair his judgment;

(7) Perry's decision to give consent to taking Androcur aligns with his values and his desire to improve his life.

1. On mental state examination, Dr Ferdinando found Perry's thought form to be coherent with no evidence of formal thought disorder. Dr Ferdinando said Perry demonstrates good insight into his mental health conditions and the impact of his actions on other people.
2. On the day of the assessment conducted by Dr Ferdinando, Perry signed a treatment consent form and certified that he:

(1) had been given information about the treatment with cryproterone acetate (Androcur) and the potential risks of that treatment, which include hot flushes, weight gain, breast swelling, liver toxicity, bone density loss, and a rare benign brain tumour;

(2) was aware that the treatment may lower his sperm count;

(3) had discussed the potential risks of the treatment as listed above with Dr Ferdinando;

(4) acknowledged that to undertake the proposed Treatment he will need to undergo regular blood and other tests.

1. Dr Frank shares Dr Ferdinando's opinion that Perry is capable of giving consent to the proposed Treatment. In a proforma NCAT "Health professional report form for special treatment", Dr Frank explained that the purpose of the proposed Treatment was to reduce Perry's "sexual preoccupation [which] will directly improve his capacity to engage in healthy social relationships with peers and carers".
2. In answer to the question, "is the person incapable of understanding the general nature and effect of the proposed treatment", Dr Frank wrote "no". He wrote that Perry is aware of the available treatment options, the risks of the proposed Treatment and, further, is "well aware of the risks of not engaging in the [proposed Treatment], i.e. re-offending long-term social dysfunction".

1. Psychiatric Registrar, Dr Z, participated in the hearing to determine the Application on behalf of Dr Frank who was apparently on leave. Dr Z said he shared the opinion expressed by his TRC colleagues, Drs Ferdinando and Frank, that Perry had capacity to give consent to the proposed Treatment. He said he was unaware of any other medical practitioner who holds a different view.

1. In an undated report filed with NCAT on 23 June 2025, psychologist, Ms Y, provided an opinion about the Application. Ms Y works with a disability support organization, which has provided behaviour support services to Perry since 2022.
2. Ms Y wrote that Perry:

(1) struggles with intense mood swings and heightened emotional sensitivity, which can lead to periods of dysregulation, particularly in response to feelings of rejection or abandonment;

(2) has a pattern of engaging in maladaptive coping strategies associated with emotional distress including physical aggression towards staff and others, verbal aggression to staff and others (including threats of harm), property damage, and self-harm;

(3) experiences anxiety which manifests as excessive worry, overthinking, and difficulty calming his mind, often affecting his sleep and ability to focus on tasks;

(4) relies on self-harm as a coping mechanism reflecting his difficulty managing distressing emotions and intrusive thoughts;

(5) suffers auditory hallucinations that urge him to harm himself, impacting his safety and requiring constant vigilance from his support team;

(6) struggles with impulsivity and poor executive functioning exacerbating challenges in completing tasks and adhering to structured schedules.

1. According to Ms Y, to date Perry appears to comply with the conditions of the Correction Order and since 2022, there have been no known, or recorded, incidents of inappropriate sexual behaviour involving Perry.
2. According to Ms Y, "[the disability service provider] staff have doubts [as] to Perry's capacity to fully understand [the proposed treatment] and its effects". She wrote that through meetings with Perry, the disability service provider staff have ascertained that he:

(1) was able to identify some side effects including breast tissue growth, headaches and effects on bone density;

(2) was unable to identify any effects on his mood nor any long-term side effects;

(3) was able to communicate that he may be prescribed medication to reduce his sexual desires;

(4) was unsure how the medication may make him feel or impact on his day-to-day functioning;

(5) did not identify any worries or concerns associated with taking the medication;

(6) feels that the medication will "keep him out of jail";

(7) is unsure of how long he will take the medication but feels as though it will be a long-term thing;

(8) thought he could take it "when he gets a girlfriend as that's when he will need it".

1. Ms Y concluded that the disability service provider "has concerns that [Perry] may lack the full understanding and consequences of taking anti-libidinal medication and, if so, may not be able to provide his consent".

Opinion of separate representative about Perry's evidence about his understanding of the proposed Treatment

1. In these proceedings, solicitor, Ms Wendy Muir, was appointed as separate representative for Perry. Ms Muir met with Perry on 12 June 2025 to discuss the Application. She said that in that meeting Perry explained that his primary motivation for consenting to take Androcur was to be able to form and keep "healthy relationships". In addition, at that meeting Perry outlined his understanding of the effects and the risks of taking Androcur. According to Ms Muir, that reported understanding was not materially different to what Dr Ferdinando recorded he had been told by Perry in the April 2025 capacity assessment.

1. The Public Guardian advises that since being appointed as Perry's guardian, the Public Guardian has not been requested to consent to the carrying out of medical or dental treatment on behalf of Perry.
2. According to the Public Guardian, the dental surgeon who extracted one of Perry's wisdom teeth under sedation in November 2024, told the Public Guardian that in their opinion Perry was capable of consenting to that treatment.
3. Perry said in the past six months his GP has prescribed two types of medication to stabilise his mood. The GP did not seek consent from the Public Guardian to prescribe that medication to Perry.

Perry's evidence about his understanding of the proposed Treatment

1. In the hearing to determine the Application, we questioned Perry at length about his understanding of the proposed Treatment and his reasons for consenting to that treatment.
2. The answers Perry gave to our questions were consistent with those Dr Ferdinando recorded of what Perry told him during the capacity assessment. Perry impressed us as having a relatively detailed understanding of the risks of the proposed treatment.

1. The primary question raised by the application is whether Perry is incapable of giving consent to the proposed Treatment. Because it is evident that Perry is capable of indicating that he consents to the proposed Treatment being carried out (Guardianship Act, s 33(2)(b)), the answer to that question turns on whether Perry is incapable of understanding the general nature and effect of that treatment (Guardianship Act, s 33(2)(a)).
2. In deciding whether Perry is incapable of understanding the general nature and effect of the proposed Treatment, the starting point is the presumption that he is capable of understanding the general nature and effect of that treatment. The common law presumption of capacity is reflected in the wording of s 33(2) of the Guardianship Act, which requires consideration of whether the person is incapable of either understanding the general nature and effect of the proposed treatment, or indicating whether that they consent (or not) to the treatment being carried out.
3. Highly relevant to that assessment is the nature and importance of that decision. As McDougall J observed in Hunter at [24], 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. The decision to consent to the proposed Treatment is objectively important to Perry. As revealed by the medical evidence, the potential side effects of the proposed Treatment are many and various. Undergoing the proposed treatment poses a real and material risk to Perry's health in the short and long term. On the other hand, not undergoing the proposed treatment poses a real and material risk to Perry's welfare and interests.
4. That Perry has been the subject of guardianship orders since 2023, does not establish that he lacks capacity to consent to, or to refuse consent to, the proposed Treatment. The precondition to the exercise of the Tribunal's power to make a guardianship order and the precondition to the exercise of the power to consent to prescribed special treatment on behalf of a person are different. The former requires the Tribunal to be satisfied that the person is a "person in need of a guardian", that is, a "person who because of a disability is totally or partially incapable of managing his or her person": Guardianship Act, ss 3(1), 14(1). A person with a disability includes a person who is physically and/or psychologically disabled and by virtue of that fact is restricted in one or more major life activities to such an extent that they require supervision or social habilitation [support to live in the community]: Guardianship Act, s 3(2). In contrast, the latter requires the Tribunal to be satisfied that the person is incapable of understanding the general nature and effect of the proposed treatment, or is incapable of indicating whether or not they consent or do not consent to the treatment being carried out.
5. That the Tribunals which made the initial guardianship order and the 2025 order to renew that order gave the guardian a "medical and dental treatment" consent function does not mean that those Tribunals found that that Perry was or would be incapable of giving his consent to treatment. As is apparent from the terms of that order which is set out below, the guardian's authority to consent to proposed medical or dental treatment on behalf of Perry is only triggered in circumstances where Perry is "not capable of giving a valid consent". Or put another way, where Perry is a patient to whom Pt 5 of the Guardianship Act applies:

"b) Medical/Dental consent

To make substitute decisions about proposed minor or major medical or dental treatment, where [Perry] is not capable of giving a valid consent."

1. The subject decision is complex in nature. As the available medical evidence reveals, there are many risks of the proposed treatment, both short and long term. Those risks range from the relatively minor, such as weight gain, to the more serious, such as brain tumour, liver toxicity and loss of bone density. In the risk assessment of whether to consent to the proposed Treatment, a further consideration is that, on the available evidence, it would not appear to be a forgone conclusion that the Treatment will moderate Perry's sexual urges and enable him to engage in "healthy" sexual relationships, by which we understand the experts to mean "consensual".
2. Nonetheless, despite its importance to Perry and the complex nature of the medical information about the proposed Treatment, for the following reasons we are not satisfied that Perry is incapable of understanding the general nature and effect of that treatment:

(1) Dr Ferdinando is of the opinion that Perry is capable of understanding the general nature and effect of the proposed Treatment and giving, or withholding, consent to that treatment. Dr Ferdinando formed that opinion after conducting a detailed capacity assessment. The report of that assessment set out the matters Dr Ferdinando considered in making that assessment. Dr Ferdinando gave a reasoned explanation for his opinion. As a forensic psychiatrist working with "high risk sexual offenders", Dr Ferdinando is qualified to give that opinion.

(2) Dr Frank and Dr Z agree with Dr Ferdinando's opinion. Each have discussed the proposed treatment with Perry and are familiar with the capacity assessment conducted by Dr Ferdinando.

(3) The only conflicting expert opinion is that expressed by Ms Y. At its highest, that opinion is in the nature of an expression of doubt about Perry's capacity to "fully understand this medication and its effects". In circumstances where it is presumed that Perry has capacity to consent to the proposed treatment, an opinion, albeit an expert opinion, expressing doubt does not rebut the presumption that Perry is capable of giving consent to the carrying out of the proposed Treatment. Furthermore, the question to be addressed is not whether Perry "fully understands the proposed treatment and its effects". Rather, the question to be addressed is whether Perry is "incapable of understanding the general nature and effect" of the proposed treatment.

(4) Perry has given a consistent account of his understanding of the risks and the effects of the proposed Treatment to Dr Ferdinando in April 2025, to Ms Muir in June 2025 and to the Tribunal in August 2025. This demonstrates that Perry is not only able to retain the information he has been given about the proposed Treatment but that his decision to agree to that agreement is durable.

(5) The evidence given by Perry in these proceedings demonstrates that he is able to weigh up and evaluate the information he has been given about the proposed Treatment, notwithstanding the complex nature of that information.

(6) Perry has repeatedly given a plausible and reasoned explanation for his decision to consent to the proposed Treatment: to decrease his risk of re-offending and returning to custody and to increase the chance of being able to form healthy relationships.

1. While not determinative, we note that none of the health practitioners who have treated Perry since 2023 have formed the opinion that he lacks capacity to consent to the treatment they have carried out on Perry.
2. We are not satisfied that Perry is incapable of understanding the general nature and effect of the proposed Treatment. Nor are we satisfied that he is incapable of indicating whether he consents or does not consent to that Treatment being carried out. Accordingly, the Tribunal lacks power to consent to that the proposed Treatment on behalf of Perry. The Application must be dismissed.

1. Dr Z asked for guidance about two issues raised by the Application, which he said commonly arose in applications of these types and were the source of disagreement between the parties. Because we found that Perry was not a patient to whom Pt 5 of the Guardianship Act applied it is not necessary to decide those issues. We lack power to make a declaration of legal principle which is not necessary to determine an application. Generally, it would be inappropriate for the Tribunal to offer an opinion about matters that do not arise for determination. Nonetheless because as we understand there is considerable uncertainty surrounding these issues, we make the following observations. These observations are not binding on future Tribunals.

Whether an application must be made seeking the Tribunal's consent to special treatment regardless of Perry's capacity?

1. No. The Guardianship Act does not require a person who proposes to carry out treatment on a person, including special treatment, to obtain a "ruling" from NCAT that the subject person is a patient to whom Pt 5 of that Act applies. That is, a person who is of or above the age of 16 years and who is incapable of giving consent to the carrying out of medical or dental treatment: Guardianship Act, s 34.
2. The fact that the person on whom the proposed Treatment is to be carried out is the subject of a guardianship order, which includes a medical consent function, does not alter that position. As explained above at [36]-[37], the inclusion of a medical consent function in a guardianship order does not indicate that the Tribunal found that the person the subject of that order is, or is likely to be, throughout the term of that order, a patient to whom Pt 5 of the Guardianship Act applies.

Is the proposed Treatment for the "purpose of behavioural control"?

1. As noted above, the Guardianship Act defines special treatment to include "any other kind of treatment declared by the regulations to be special treatment for the purposes of this Part": par (c) of the definition of special treatment in s 33(1) of the Guardianship Act. The Guardianship Regulation 2016 (NSW) declares special medical treatment to include "any treatment that involves the use of androgen reducing medication for the purpose of behavioural control": cl 14(b).
2. Dr Z queried whether the proposed Treatment could be properly characterised as "treatment ... for the purpose of behavioural control", in circumstances where, Perry has been diagnosed with "compulsive sexual behaviour disorder" and "hyper-sexuality disorder" (the disorders) and the proposed Treatment is to be used to treat those disorders. According to Dr Z, compulsive sexual behaviour disorder and hyper-sexuality disorder are now included in the World Health Organization, International Classification of Diseases, 11th Revision (ICD-11), but not the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-V).
3. It was only towards the end of the hearing that Dr Z raised that Perry had been diagnosed with the disorders. Neither were referred to in the Application or material filed in support. For current purposes, we will assume but not decide that Perry has been diagnosed with these disorders, and, as we understand Dr Z to suggest, each are recognised by the Australian medical profession as recognised psychiatric conditions.
4. The Macquarie Dictionary online defines "treat" to include "to deal with (a disease, patient, etc.) in order to relieve or cure". The Oxford Dictionary online contains a similar definition "to deal with or operate upon (a disease or affection, a part of the body, or a person) in order to relieve or cure".
5. The fact that Perry may have been diagnosed with the disorders does not mean that the proposed Treatment is not "for the purpose of behavioural control". The evidence reveals, and Perry acknowledges, that the primary purpose of the proposed Treatment is to moderate his sexual behaviour. There is no evidence that Perry's TRC treating team is of the opinion that the proposed Treatment is likely to cure one or both disorders. Even if assumed that the proposed Treatment would be used to relieve the symptoms of those disorders that does not exclude a finding that it is also being used for the purpose of behavioural control. The two are not mutually exclusive.
6. Finally, even if found that the proposed Treatment was not "treatment that involves the use of androgen-reducing medication for the purpose of behavioural control", nonetheless it would be characterised as "medical treatment": Guardianship Act, s 33(1). To carry out that treatment, the treating practitioner would be required to obtain consent to that treatment, from Perry, or if he was incapable of providing consent, his "person responsible", the Public Guardian: Guardianship Act, s 36(1).

Is the proposed Treatment a restrictive practice?

1. A National Disability Insurance Scheme (NDIS) provider must comply with the requirements of the National Disability Insurance Scheme Act 2013 (Cth) and the National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Cth) when using a regulated restrictive practice in respect of an NDIS participant. A regulated restrictive practice is defined by r 6(b) of the rules to include "chemical restraint", that is:

"The use of medication or chemical substance for the primary purpose of influencing a person's behaviour. It does not include the use of medication prescribed by a medical practitioner for the treatment of, or to enable treatment of, a diagnosed mental disorder, a physical illness or a physical condition.": National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Cth), r 6(b)

1. The reasoning that applied to the question of whether the use of Androgen falls within the definition of special treatment applies equally here. The fact that Perry may have been diagnosed with the disorders is not determinative. Whether the use of Androgen can be properly characterised as chemical restraint can only be determined on a case-by-case basis and requires consideration of the purpose(s) for which it is prescribed and/or used. On the available evidence it would appear, as Perry understands that its primary purpose is to influence his behaviour. If correct the proposed use of Androgen constitutes chemical restraint.

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.