NGN [2020] NSWCATGD 100

NSW Civil and Administrative Tribunal New South Wales Medium Neutral Citation: NGN [2020] NSWCATGD 100 Hearing dates: 5 June 2020 Date of orders: 5 June 2020 Decision date: 05 June 2020 Jurisdiction: Guardianship Division Before: C P Fougere, Principal Member Dr B McPhee, Senior Member (Professional) J L Newman, General Member (Community) Decision: The application seeking consent to special medical treatment for NGN is dismissed after hearing, because we were not satisfied that NGN is incapable of giving consent to the carrying out of the treatment. The guardianship order for NGN made on 22 April 2020 has been reviewed. The order now is as follows: 1. TZE, of [Address removed for publication.], is appointed as the guardian. 2. This is a continuing guardianship order for a period of 12 months from 22 April 2020. 3. This is a limited guardianship order giving the guardian(s) custody of NGN to the extent necessary to carry out the functions below. FUNCTIONS: 4. The guardian has the following functions: a) Accommodation To decide where NGN may reside. b) The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to: i) take NGN to a place approved by the guardian. ii) keep them at that place. iii) return them to that place should they leave it. c) Health care To decide what health care NGN may receive. d) Medical/Dental consent To make substitute decisions about proposed minor or major medical or dental treatment, where NGN is not capable of giving a valid consent. e) Services To make decisions about services to be provided to NGN. AUTHORITY: 5. The guardian has the following authority: a) Authority to override objections to medical treatment i) The guardian may override the objection of NGN to major or minor medical treatment. CONDITION: 6. The condition of this order is: a) Standard Condition In exercising this role the guardian shall take all reasonable steps to bring NGN to an understanding of the issues and to obtain and consider her views before making significant decisions. Catchwords: CONSENT TO MEDICAL TREATMENT – application for consent to special medical treatment – 17-year-old woman with mild intellectual disability and autism – termination of pregnancy – application of Part 5 of the Guardianship Act 1987 (NSW) – whether the patient is incapable of giving consent – whether the patient is incapable of understanding the general nature and effect of the proposed treatment – presumption of capacity not rebutted – application dismissed GUARDIANSHIP – requested review of guardianship order – request to add function to override the subject person's objection to major and minor medical treatment – subject person has an extreme needle phobia – need for consent for the use of a needle to administer anaesthetic treatment if required – order varied Legislation Cited: Civil and Administrative Tribunal Rules 2014 (NSW), r 27 Guardianship Act 1987 (NSW), ss 33(2), 34, 34(1); Pt 5 Guardianship Regulations 2016 (NSW), reg 9 Cases Cited: Application of a Local Health District; Re a Patient Fay [2016] NSWSC 624 Guthrie v Spence [2009] NSWCA 369 Hunter and New England Area Health Service v A [2009] NSWSC 761 In Re C (Adult: Refusal of Treatment) [1994] 1 WLR 290 In re T (Adult: Refusal of Treatment) [1993] Fam 95 Re JS [2014] NSWSC 302 Re MB [1997] 2 FCR 514 SKX [2010] NSWGT 29 UMG [2015] NSWCATGD 54 Texts Cited: None cited. Category: Principal judgment Parties: 004: Consent to Special Medical Treatment