NSW Civil and Administrative Tribunal New South Wales Medium Neutral Citation: UZM [2021] NSWCATGD 15 Hearing dates: 9 September 2021 Date of orders: 9 September 2021 Decision date: 09 September 2021 Jurisdiction: Guardianship Division Before: J D'Arcy, Senior Member (Legal) Dr I L Beale, Senior Member (Professional) I Ferreira, General Member (Community) Decision: The Tribunal consents to the following medical treatment being provided to UZM: A full course of vaccination with the Pfizer or AstraZeneca COVID-19 vaccine and any necessary treatment that would normally be provided in association with or directly consequent upon the above treatment. This consent is effective for a period of three months from the date of this order. This consent is effective even though UZM objects to the treatment. Catchwords: GUARDIANSHIP – COVID-19 vaccination – consent to medical treatment – prophylactic treatment – objection to vaccination – fear of needles – whether objection can be disregarded – whether vaccine is provided to promote health and well-being – requirement for formal consent Legislation Cited: Guardianship Act 1987 (NSW), Pt 5, ss 33(1)(a), 33A(4), 42, 42(2), 46(4) Guardianship Regulation 2005 (NSW), Pt 3, r 10(f) Cases Cited: None cited. Texts Cited: None cited. Category: Principal judgment Parties: 001: Consent to Medical or Dental Treatment UZM (the person) TBE (applicant) Representation: Nil. File Number(s): NCAT 2021/00255324 Publication restriction: Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal's proceedings: Civil and Administrative Tribunal Act 2013 (NSW), s 65. REASONS FOR DECISION Background 1. This hearing concerns an application for consent to medical treatment for UZM, that is, vaccination against COVID-19. 2. UZM is 39 years old. He lives in a group home with two other persons in Inner West Sydney. 3. UZM is reported to have been diagnosed with autism spectrum disorder. He has no expressive speech. 4. On 7 September 2021 TBE, a senior manager at UZM's disability service provider, requested the Tribunal's consent to the administration of vaccinations against COVID-19 because UZM refuses to have the treatment due to his fear of needles. The treatment will need to be given under sedation. The hearing 1. 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.] 2. Due to the nature of his disability, UZM was unable to participate in the hearing and to provide his views. What issues did the Tribunal have to consider? 1. Part 5 of the Guardianship Act 1987 (NSW) ("the Act") distinguishes between major and minor medical treatment for persons who are incapable of consenting to their own treatment. Major treatment is defined in Pt 3 of the Guardianship Regulation 2005 (NSW) ("the Regulation"). 2. A COVID-19 vaccination is treatment under s 33(1)(a) of the Act because it is a prophylactic treatment. 3. A COVID-19 vaccination would be considered minor treatment for most people who are incapable of consenting to their own treatment. Consent can be given by their person responsible (that is, a person's guardian, spouse or partner, carer, or relative or friend in a hierarchy set out in sub-s 33A(4) of the Act). 4. If the person does not have a person responsible, or the person responsible cannot be contacted, or is unable or unwilling to make decisions about the vaccination, the person can still be vaccinated against COVID-19 if: * the treatment is minor treatment, considering the person's circumstances; * the person does not object; and * their medical practitioner, or the person giving the vaccination under the supervision of the medical practitioner, is satisfied that the vaccination is necessary to promote the patient's health and well-being. The medical practitioner must note these factors on the person's record. 1. A COVID-19 vaccination would be major treatment under the Act if the treatment proposed a substantial risk to the patient of certain health consequences (defined in r 10(f) of the Regulation as death, brain damage, paralysis, permanent loss of function of any organ or limb, permanent and disfiguring scarring, exacerbation of the condition being treated, an unusually prolonged period of recovery, detrimental change of personality or a high level of pain or stress). In those circumstances consent must be sought from the guardian or this Tribunal. 2. Where a patient objects to receiving a COVID-19 vaccination, only this Tribunal, or the guardian who has the authority to override the patient's objections to treatment, will be able to consent to the vaccination. 3. However the person's objection can be disregarded if: * the person has minimal or no understanding of what the vaccination entails; and * either the treatment will cause the person no distress or, if it causes some distress, that distress is likely to be reasonably tolerable and transitory: the Act, sub-s 46(4). 1. When determining an application for consent to medical treatment under s 42 of the Act, the Tribunal must consider the following matters, as outlined in sub-s 42(2) of the Act: 1. the grounds on which it is alleged that the person is a person to whom this Part applies; 2. the particular condition of the person 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. 1. The Tribunal must also consider the objects of Pt 5 of the Act, which are to ensure that people are not deprived of necessary medical treatment because they lack the capacity to consent to that treatment; and to ensure that any medical treatment that is performed is done so for the purpose of promoting and maintaining the person's health and well-being. Is UZM incapable of providing consent to the proposed treatment? 1. The Tribunal is satisfied that UZM is incapable of consenting to the COVID-19 vaccination because he cannot understand the general nature and effect of the proposed treatment due to his diagnosis of autism spectrum disorder. 2. TBE explained that Mr Z is UZM's father and person responsible. He has consented to his son being vaccinated against COVID-19. In the hearing, Mr Z confirmed that this was the case. 3. TBE stated that UZM's general practitioner has signed a consent form and that UZM has no medical conditions which would pose a significant risk to his health if he was vaccinated. He has successfully received his influenza vaccination from his general practitioner but the general practitioner is not approved to provide vaccinations against COVID-19. 4. TBE stated that four unsuccessful attempts have been made to have UZM vaccinated. Each attempt has failed because of his fear of needles. Vaccination sites were unfamiliar to him and there was insufficient time to desensitise UZM to attend those new surroundings. 5. The plan is for UZM to be given an Emla patch to desensitise the skin and then to insert a butterfly cannula to allow him to be given intravenous diazepam prior to the COVID-19 vaccination. The Tribunal's findings 1. The Tribunal was satisfied that due to his diagnosis of autism spectrum disorder, UZM was incapable of giving consent to the COVID-19 vaccination. His father and person responsible, Mr Z, had consented to the vaccination and his general practitioner had signed the relevant consent form. The Tribunal accepted TBE's evidence that UZM had no medical conditions which would pose any health risks if he received the COVID-19 vaccination. 2. UZM is refusing the vaccination due to his fear of needles and plans are in place for him to receive sedation prior to the vaccination. 3. The Tribunal decided not to disregard his objection because after four previous attempts at vaccination, the Tribunal was not satisfied that his distress is likely to be reasonably tolerable and transitory. 4. The Tribunal is also satisfied that the vaccination was being provided to UZM to promote and maintain his health and well-being and to ensure that he can take advantage of the freedoms which will be provided to fully vaccinated people once the current lockdown ends. 5. The Tribunal therefore gave consent to the following medical treatment being provided to UZM: a full course of vaccination with the Pfizer or AstraZeneca COVID-19 vaccine. Consent is effective for a period of three months on the basis that UZM has not yet been given a date for his first vaccination. 6. This consent is effective even though UZM objects to the treatment. ********** 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: 11 October 2021