NSW Civil and Administrative Tribunal New South Wales Medium Neutral Citation: MCF [2020] NSWCATGD 77 Hearing dates: 23 October 2020 Date of orders: 23 October 2020 Decision date: 23 October 2020 Jurisdiction: Guardianship Division Before: R H Booby, Senior Member (Legal) Dr G Jamieson, Senior Member (Professional) J L Newman, General Member (Community) Decision: The Tribunal consents to the following special medical treatment being provided to MCF: Total abdominal hysterectomy and bilateral salpingo-oophorectomy + staging 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 one week(s) from the date of this order. Catchwords: CONSENT TO MEDICAL TREATMENT – application for consent to special medical treatment – abdominal hysterectomy and bilateral salpingo-oophorectomy – 49 year old woman – treatment of cancer and clots – to prevent further pulmonary emboli, deep vein thrombosis and possible death – whether patient is infertile – whether patient understands increased risks – 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, 33(1)-(2), 36(1)(b), 42, 44, 45(2) Cases Cited: None cited. Texts Cited: None cited. Category: Principal judgment Parties: 002: Consent to Special Medical Treatment MCF (the person) GZB (applicant) SBO (applicant) Representation: Solicitors: N Danis, separate representative for MCF File Number(s): NCAT 2020/00303043 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. MCF is 49 years old and lives in regional NSW. At the time of the hearing she was a patient at a public hospital due to a large pelvic mass thought to be malignant. 2. The Tribunal received an application seeking consent to medical treatment for MCF. The applicant was GZB, on behalf of Dr Z, who is a Gynaecological Oncologist. The proposed treatment was a total abdominal hysterectomy and bilateral salpingo-oophorectomy plus staging. In the application GZB indicates that the proposed treatment is special medical treatment and that MCF was not able to understand the proposed treatment. 3. On 22 October 2020 the Tribunal ordered that MCF be separately represented in respect of the application. Ms Nihal Danis of Legal Aid appeared as the separate representative. 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. GZB was not in attendance at the hearing and SBO was a substitute applicant. 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 MCF incapable of giving consent to the proposed special treatment? 3. Is the treatment necessary to save MCF's life or is the treatment necessary to prevent serious damage to MCF's health? 4. Is the proposed special treatment the most appropriate form of treatment for promoting and maintaining MCF'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. We enquired whether, at age 49, MCF was in fact infertile. Dr Z said that he believes that MCF was peri-menopausal and that the chances of pregnancy would be "incredibly low". 3. Taking into account Dr Z's evidence we were not able to be satisfied that MCF is infertile and we were satisfied that if she were not infertile, the proposed treatment is likely to have the effect of rendering her infertile. Is MCF 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 the application MCF is described as having an intellectual disability. 2. In a report to the Tribunal, Ms Y, a social worker at the public hospital, advises that MCF has a congenital cognitive impairment and that her level of cognition has been assessed as being the equivalent of a ten year old, and that she becomes anxious around stoves, needles, and being away from home. She has a National Disability Insurance Scheme (NDIS) Plan that indicates that she has been diagnosed with a moderate intellectual disability, autism spectrum disorder and severe anxiety. Her NDIS support workers and coordinator were of the view that it was best for another person to make medical decisions for her. 3. Dr Z said that he was satisfied that MCF had a general understanding of the proposed treatment and its implications. However scans have indicated that MCF has deep vein thrombosis and pulmonary emboli and is at increased risk due to pulmonary emboli which could complicate surgery and result in death. He was not satisfied that she understood that risk. 4. Ms X, who is a paid carer of MCF said that MCF has previously made her own medical decisions and is usually able to make decisions. However she thought that MCF would not understand the risks due to the pulmonary emboli. 5. MCF was able to describe the procedure and the need for it to the Tribunal and Ms Danis said that she had been able to do so in discussion between the two of them. However she was of the view that MCF did not understand that she was at risk due to pulmonary emboli and did not understand the nature of that risk. On balance, Ms Danis was of the view that MCF was not able to provide informed consent to the procedure. 6. We were satisfied that MCF understood the need for the treatment and its general nature. However we were not satisfied that she understood the possible effects of the proposed surgery, including the increased risk and possible death as the result of pulmonary emboli. Accordingly we were not satisfied that she could provide informed consent to the procedure. What is the particular condition of the patient that requires treatment? 1. Dr Z said that at the moment there is no actual evidence of metastases from the cancer but there are life threatening clots possibly also related to the cancer that need to be addressed, as well as the possibility of metastases. What are the alternative options for treatment that are available? 1. In the application, GZB does not provide information about possible alternative treatments. During the hearing Dr Z indicated that the only alternative treatment was chemotherapy that was considered not to be quick enough to achieve necessary outcomes. Why is it proposed that the treatment should be carried out? 1. The treatment is proposed to address the cancer and clots and to prevent further pulmonary emboli, deep vein thrombosis and possible death. Are there any risks associated with the proposed treatment? 1. As noted, there are increased risks to MCF due to the pulmonary emboli. However we were advised that without the treatment, the worsening of symptoms and death are likely consequences. 2. MCF said that she wanted the procedure to go ahead to save her life. 3. 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 MCF'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 MCF'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