NSW Civil and Administrative Tribunal New South Wales Medium Neutral Citation: TZV [2020] NSWCATGD 76 Hearing dates: 16 December 2020 Date of orders: 16 December 2020 Decision date: 16 December 2020 Jurisdiction: Guardianship Division Before: R H Booby, Senior Member (Legal) Dr B McPhee, Senior Member (Professional) L Porter, General Member (Community) Decision: The Tribunal consents to the following special medical treatment being provided to TZV: Twenty five days of daily External Beam Radiotherapy to pelvis and para aortic lymph nodes and administration of Cisplatin at maximum dosage of 40mg/m2 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 month(s) from the date of this order. Catchwords: CONSENT TO MEDICAL TREATMENT – application for consent to special medical treatment – external beam radiotherapy – 40 year old woman – stage 4 cervical cancer – subject person incapable of giving consent to treatment – patient and family member support treatment – no realistic alternative to proposed treatment – whether treatment is necessary to save patient's life or prevent serious damage to health – consent given Legislation Cited: Guardianship Act 1987 (NSW), ss 33(1)-(2), 36(1)(b), 42, 44, 45(2) Mental Health Act 2007 (NSW) Cases Cited: None cited. Texts Cited: None cited. Category: Principal judgment Parties: 002: Consent to Special Medical Treatment TZV (the person) BCQ (applicant) Representation: Nil. File Number(s): NCAT 2020/00353873 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 SPECIAL MEDICAL CONSENT Background 1. TZV is 40 years old and lives in Southwest Sydney, NSW. At the time of the hearing she was a patient at a public hospital where she was being treated for advanced stage locally invasive cervical cancer. 2. The Tribunal received an application seeking consent to medical treatment for TZV. The applicant was BCQ, Radiation Oncology Registrar on behalf of Dr Z who is a Radiation Oncology Staff Specialist. The proposed treatment was External Beam Radiotherapy to pelvis and para aortic lymph nodes and administration of Cisplatin at maximum dosage of 40mg/m2. 3. In the application BCQ indicates that the proposed treatment is special medical treatment and that TZV was not able to understand the proposed treatment due to a psychotic illness. 4. On 15 December 2020 the Tribunal ordered that TZV be separately represented in respect of the application. However no separate representative was made available by Legal Aid. 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.] 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" 1. 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. 1. 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). 2. 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. 3. 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. 1. 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 TZV incapable of giving consent to the proposed special treatment? 3. Is the treatment necessary to save TZV's life or is the treatment necessary to prevent serious damage to TZV's health? 4. Is the proposed special treatment the most appropriate form of treatment for promoting and maintaining TZV'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. Dr Z explained that the external External Beam Radiotherapy to pelvis and para aortic lymph nodes would render TZV permanently infertile. We accepted the evidence of Dr Z on this matter and we were satisfied that the proposed treatment is "special medical treatment". Is TZV 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. 1. In notes of an interview with TZV in which he assessed her ability to consent to the treatment, Dr Y, a Psychiatry Trainee Specialist notes that TZV often needed redirection and was tangential, including reference to her success at "beer pong". He describes TZV as being fatuous and thought disordered during his discussions and as having only a superficial understanding of her condition. During the hearing Dr Y said that TZV has been known to mental health services with records dating to 2011 and 2015 when she was at another public hospital. She had been visited by Community Mental Health staff and described as exhibiting psychotic behaviour. She had been lost to follow up. Whilst her current symptoms might be addressed with appropriate medication it would take some six weeks for an effect to be in evidence. Despite her thought disorder she was not considered to require admission under the Mental Health Act 2007 (NSW). 2. Dr Z said that treatment was required on a more urgent basis than six weeks. He said that when he had examined TZV previously when her cancer was at Stage 1, he had discussed the possibility of surgery and radiotherapy and she had suggested that he call her brother to explain the procedure. 3. When asked about her understanding of the procedure and the risks TZV described it as being "like a sauna" or "energy" and said that she understood its side effects would include drying out her body and making her nauseous and it would change her electrolyte balance. She said that she would need to buy some products to help her handle the procedure and nominated the purchase of tonics and Power Aid as relevant items. When asked about infertility arising from the treatment she said that she would "google" that but had taken it into account in agreeing to the procedure. 4. Taking into account the views of Dr Y we were satisfied that TZV has not demonstrated an understanding of the procedure and when discussing it presented with some disorder of thought. We also took into account the evidence of Dr Z as indicating that some years previously TZV had been unable to provide consent to less invasive treatment. We were also satisfied that TZV's discussion of the nature and effect of the treatment indicates that she has not understood and rationally considered its nature and effects, including possible unintended effects that include infertility. 5. Taking these matters into account we were satisfied that TZV is not able to understand the general nature and effects of the treatment and therefore is not able to provide her own consent to the treatment. What is the particular condition of the patient that requires treatment? 1. TZV was diagnosed with locally advanced cervical cancer (Stage 4). What are the alternative options for treatment that are available? 1. BCQ indicates that there are no alternative treatments. During the hearing Dr Z indicated that there are adjunctive treatments that include internal radiotherapy that is more targeted than the treatment for which consent is sought, and chemotherapy. It was planned for TZV to see a medical oncologist the day after the hearing, but the preliminary treatment was the external radiation, followed by the chemotherapy and internal radiation Why is it proposed that the treatment should be carried out? 1. The treatment is proposed to address the cancer to prevent worsening symptoms including pain and haemorrhage, metastases and death. Are there any risks associated with the proposed treatment? 1. In the application BCQ indicates that in addition to infertility the risks include ovarian failure and early menopause and long term risks that include cystitis, proctitis, sexual dysfunction, vaginal dryness narrowing and stenosis and, rarely, secondary malignancy. 2. We were advised that the chemotherapy drug, Cisplatin could cause vomiting and muscle pain as well as neuropathy and hearing difficulty and kidney damage. 3. TZV said that she wanted the procedure to go ahead because her condition was "critical" and her mother, Ms X, also agreed that the treatment should proceed, 4. We are satisfied that the risks of the procedure are not greater than is reasonable having regard to the risks of not carrying out the procedure. Is the proposed treatment the most appropriate treatment? 1. We are of the view that there is no realistic alternative to the proposed treatment and therefore that it 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 TZV'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 TZV'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. ********** 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