Ad - [2007] WASAT 123

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM :HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: AD [2007] WASAT 123

MEMBER: JUSTICE M L BARKER (PRESIDENT)
MS F CHILD (MEMBER)
DR A MCCUTCHEON (SENIOR SESSIONAL MEMBER)

HEARD: 11 APRIL 2007

DELIVERED : 25 MAY 2007

FILE NO/S: GAA 1363 of 2006

BETWEEN: AD
Represented person

Catchwords:

Guardianship and Administration- Application for consent to sterilisation - Guardianship and Administration Act 1990 (WA) s 63 - 22-year-old woman with intellectual disability and history of behavioural disturbance - Alternate less restrictive means of menstrual management and contraception effective - Sterilisation not in the best interests of the represented person - Consent refused

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 13(e), s 51, s 56A, s 57, s 59(1), s 63
State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA)

Result:

Application dismissed

Category: A

Representation:

Counsel:

Represented person : Ms PA Rezos

Solicitors:

Represented person : Dwyer Durack

Case(s) referred to in decision(s):

P v P (1995) 126 FLR 245
Re Jane (1998) 94 FLR 1
Secretary, Department of Health and Community Services v JWB and SMB (Marion's case) [1992] HCA 15; (1992) 175 CLR 218

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The State Administrative Tribunal heard an application for consent to sterilisation of a 22-year-old woman with intellectual disability, brought by her mother, who was also her guardian.
The mother, as guardian of her daughter, applied to the Tribunal under s 59 of the Guardianship and Administration Act 1990 (WA) for consent for a hysterectomy to be performed for her daughter's comfort and safety and for reasons of hygiene. She also maintained that the history of behavioural problems the young woman had experienced since puberty were associated with her menstruation. The father of the young woman and the coordinator of the residential service where she lived supported the application.
The Tribunal took evidence from a psychiatrist and two consultant gynaecologists and the young woman's general practitioner regarding the medical treatment of the young woman and whether a hysterectomy was indicated in the circumstances. The medical evidence provided did not support the need for a hysterectomy on either psychiatric grounds or gynaecological ones. The psychiatric treatment the young woman was receiving, including the use of medications, had settled her extreme agitation which her mother believed was associated with her menstruation. The evidence of the gynaecologists and others confirmed that her menstrual cycle was suppressed so that a hysterectomy was not indicated for contraceptive purposes or for menstrual management.
The evidence was that while the young woman will remain very dependent on others for all aspects of her care, her menstruation was no longer interfering with her activities or her quality of life. The Public Advocate's representative submitted that the young woman's safety could not be assured by the performance of a hysterectomy but only by arrangements for the careful supervision and care of the young woman. These arrangements were in place and supported by her mother.
Legal Aid Western Australia provided separate legal representation of the young woman at the Tribunal's request. The separate representative did not support consent to sterilisation being granted and argued that the facts of the case had not met the requisite standard of proof that the proposed procedure was in the best interests of the young woman. The Public Advocate who had appointed an officer from her office to investigate the application also opposed consent being granted, and submitted that less restrictive means of behavioural and menstrual management and contraception had been effective and produced positive outcomes for the young woman.
The Tribunal concluded that there was no compelling reason for the grant of consent for a hysterectomy to be performed; a procedure which the Tribunal heard had potential risks and complications.
The Tribunal considered the application had been brought in good faith by the mother who was devoted to her daughter, but was not satisfied that the procedure for sterilisation proposed was in the best interests of the young woman.

Application

The application before the Tribunal is an application under s 63 of the Guardianship and Administration Act 1990 (WA) (GA Act) for the consent of the Tribunal to the sterilisation of AD (the represented person). The application was filed with the Tribunal on 14 July 2006 by the mother of the represented person and relevantly, for the purposes of s 59(1) of the GA Act, her limited guardian.
The mother was appointed the guardian of the represented person by order of the Tribunal dated 31 May 2006 to consent to medical treatment and to chemical and physical restraint on behalf of the represented person. That proceeding is referred to in these reasons as the guardianship hearing.
The mother was appointed limited guardian as the Tribunal concluded that in the circumstances of the represented person, appointing her mother as her guardian put beyond doubt the mother's role in determining medical treatment decisions for her daughter and provided authority, if authority was needed, for the continued use of medications which had improved the represented person's agitated behaviour, sometimes called chemical restraint.
The mother understood that as guardian her authority to make medical treatment decisions did not include consent to sterilisation of the represented person which had been the focus of her application for her appointment.
The making of the guardianship order has the effect that the provisions of s 57 of the GA Act apply which makes unlawful the carrying out of a procedure for sterilisation of the represented person without the written consent of the Tribunal.

The hearing

The hearing of the application for consent was conducted by a Full Tribunal as required under s 56A of the GA Act. Prior to the final hearing of the application, the State Administrative Tribunal (Tribunal) held a number of directions hearings to ensure that all the necessary information was before it at the final hearing.
At the request of the Tribunal, Legal Aid Western Australia funded a separate representative to make legal submissions on behalf of the represented person regarding her best interests at the hearing of the application.
The hearing was attended by the applicant mother, the father of the represented person, the coordinator of the residential care placement where the represented person usually lives, a direct care worker from that service, the coordinator of the day placement service, a clinical psychologist who had assessed the represented person, the Public Advocate's representative (the Public Advocate) and the separate representative. The represented person did not attend the hearing although she had attended the guardianship hearing. Her attendance at the hearing was not required by the Tribunal and the decision about her attendance was left with her mother and guardian.
Medical evidence was taken by teleconference from a consultant psychiatrist and consultant gynaecologist who had both treated the represented person, and from her general practitioner and an Associate Professor of Gynaecology, who reviewed the medical and other reports submitted for the guardianship application and the application for consent. Both gynaecologists have extensive experience of providing gynaecological services to women with disabilities through their clinical practice and are recognised by the Tribunal as experts in this field.

The legal framework - the legislation

Section 13 of the GA Act gives jurisdiction to the Tribunal to give or withhold consent to the sterilisation of persons in respect of whom guardianship orders are in force: s 13(e).
In dealing with proceedings commenced under the GA Act, the Tribunal must observe the principles set out in s 4. This section provides that the primary concern of the Tribunal shall be the best interests of any represented person or of any person in respect of whom an application is made.
The second principle refers to the presumption of capacity of persons for whom applications have been made. In this case, the Tribunal accepts, based on the evidence before it, that the represented person is not capable of making decisions about her person. This was determined by the Tribunal when it appointed her mother as her guardian for the purposes of giving consent to medical treatment and to medications which may be needed to restrain her behaviour.
The principle of less restriction must also be observed by the Tribunal; that is, that the Tribunal must consider whether the needs of the represented person can be met in another way which is less restrictive of her personal freedom of decision and action. This principle also applies to the types of orders which can be made by the Tribunal. The principles in s 4 of the GA Act also require the Tribunal to seek, as far as possible, to ascertain the wishes of the represented person.
Section 63 of the GA Act states that the Tribunal may, by order, consent to the sterilisation of a represented person if it is satisfied that the sterilisation is in the best interests of that person. The meaning of best interests for the purposes of the GA Act is elaborated in s 51 of the Act, which requires a guardian to act in the best interests of the represented person. Some of the aspects referred to in that section include the requirement that a guardian acts as advocate for the person, encourages the person to participate in the life of the community, in a manner which is least restrictive of the rights of the person while consistent with the proper protection of the person and maintains the person's supportive relationships.

The "best interests" requirement

The meaning of best interests in the context of sterilisation of a person with disability has been considered by the courts on a number of occasions. The separate representative in her submissions to the Tribunal first refers to the case Secretary, Department of Health and Community Services v JWB and SMB (Marion's case) [1992] HCA 15; (1992) 175 CLR 218. In this case, the High Court of Australia, when dealing with the sterilisation of a young woman with intellectual disability, decided that the consent of the courts was required for sterilisation.
Justice Brennan, at 268, held that the issue for the court to determine is whether the procedure is in the best interests of the child and that sterilisation could never be authorised unless "some compelling justification is identified and demonstrated". Similarly, Mason CJ, Dawson, Toohey and Gaudron JJ, at 259, stated:
"The function of a court when asked to authorise sterilization is to decide whether, in the circumstances of the case, that is in the best interests of the child. We have already said that it is not possible to formulate a rule which will identify cases where sterilization is in his or her best interests. But it should be emphasized that the issue is not at large. Sterilization is a step of last resort. And that, in itself, identifies the issue as one within narrow confines.
In the context of medical management, 'step of last resort' is a convenient way of saying that alternative and less invasive procedures have all failed or that it is certain that no other procedure or treatment will work. The objective to be secured by sterilization is the welfare of the disabled child. Within that context, it is apparent that sterilization can only be authorized in the case of a child so disabled that other procedures or treatments are or have proved inadequate, in the sense that they have failed or will not alleviate the situation so that the child can lead a life in keeping with his or her needs or capacities."
The separate representative also refers to the decision of the Full Court of the Family Court of Australia which examined the issue further in the matter of P v P (1995) 126 FLR 245 (Lessli's case. In that case, the Full Court held:
1)The Family Court has jurisdiction to authorise performance of a medical procedure, if it is in the best interests of a child, in circumstances where the child is incapable of giving informed consent.
2)Sterilisation may be justified in certain circumstances to prevent pregnancy, to prevent the consequences of sexual abuse, to remedy problems associated with menstruation or to ease the burden on carers of the child, but it is a step of last resort.
3)Sterilisation only for menstrual management could not be justified.
4)The application of the "but for" test, namely, would the procedure be performed but for the child's disability, is inappropriate.
5)Guidelines for the exercise of the court's discretion include:
(a)It is the duty of the court rather than the parents to determine the need for sterilisation.
(b)In every case where application is made for authorisation to sterilise an allegedly incompetent person, the court should appoint an independent guardian ad litem as soon as possible to represent the person and should receive independent medical and psychological evaluations by qualified professionals.
(c)The trial judge must find the person lacks capacity to make a decision about the sterilisation and that the capacity is not likely to change in the foreseeable future.
(d)The trial judge must be persuaded by clear and convincing proof that sterilisation is in the incompetent person's best interests. To determine those interests, the court should consider the nine factors which were identified by the Chief Justice of the Family Court in the Re Jane decision, (see Re Jane (1998) 94 FLR 1 at 19 – 21).
Those nine factors are:
(i)the possibility that the incompetent person can, in fact, become pregnant;
(ii)the possibility that the incompetent person will experience trauma or psychological damage if she becomes pregnant or gives birth and conversely the possibility of such damage from the sterilisation operation;
(iii)the likelihood of voluntary sexual activity or rape;
(iv)the inability of the incompetent person to understand reproduction or contraception and the likely permanence of that inability;
(v)the feasibility of less drastic means of contraception;
(vi)the advisability of sterilisation at the time of the application rather than in the future;
(vii)the ability of the incompetent person to care for a child;
(viii)evidence that medical or scientific advances may occur within the foreseeable future which may make possible either improvement of the person's condition or less drastic sterilisation procedures; and
(ix)demonstration that the proponents of sterilisation are seeking, in good faith, the best interests of the incompetent person, rather than their own or the public's convenience.
The separate representative further refers to other cases and materials in relation to the issue of sterilisation of children and adults with disability including the Human Rights Commission Report, S Brady & S Grover, The Sterilisation of Young Women in Australia (1997) and the Australian Guardianship and Administration Committee (AGAC) Protocol for Special Medical Procedures.
The AGAC represents the heads of jurisdictions of each State and Territory exercising jurisdiction in guardianship of adults with impaired capacity. The AGAC adopted a protocol for procedures to be followed in respect of applications for sterilisation before the various boards, tribunals and courts exercising this jurisdiction in 2003 and in 2004.
The AGAC protocol aims to assist guardianship tribunals throughout Australia in exercising jurisdiction in respect of applications for sterilisation and determining whether the procedure takes place, and to promote consistency across the jurisdictions.
The aim of the protocol is to: promote, enhance and protect the best interests of the person; promote positive outcomes for the person; give the people involved in or concerned with the decision an opportunity and forum to raise and discuss all of those issues; ensure that alternative and less invasive procedures have been tried or considered; ensure that sterilisation is a last resort after other options have failed to produce outcomes satisfactory to the person; and ensure clarification of and delineation between what is in the best interests of the person and what is in the best interests of the person's carer.
The cases and materials cited provide the framework for the inquiry which must be conducted by the Tribunal of whether the proposed procedure is in the best interests of the represented person.
That framework is, in summary:
•That consent may be given by the Tribunal if consent is in the best interests of the represented person.
•Because of the seriousness of the decision to be made, the Tribunal must be convinced by clear and compelling evidence that a procedure is necessary in the best interests of the represented person.
•In the context of sterilisation, "best interests" means that such a procedure should be one of last resort although it is not necessary that all possible procedures have been tried to come to a view that a procedure is one of last resort and that no other treatment will work.
•The Tribunal needs to weigh up the factors in the particular circumstances of the represented person in support of the procedure and against it, including the disability of the represented person.
•The best interests of the represented person are separate to those of her carers and her mother. The views and wishes of the mother are not determinative of the best interests of the represented person but are of considerable importance in assessing the represented person's best interests in light of her role as guardian and her involvement in the life of the represented person.

Evidence and material before the Tribunal

In dealing with the application for consent to sterilisation of the represented person, the Tribunal received a number of documents including the application made by the mother for consent, her original application for her appointment as guardian, her submissions and the papers and medical reports filed in respect of the original application, the transcript of the guardianship hearing, medical reports from the represented person's general practitioner, from a consultant gynaecologist, from a consultant psychiatrist and from other medical practitioners who have assessed and treated the represented person, and medical records from hospitals she has attended. There are also reports from a clinical psychologist, from the workers at the represented person's day placement, and from carers from the residential care placement where the represented person lives. The Tribunal also received submissions from the Public Advocate over the period of time the matter was before the Tribunal and submissions filed by the separate representative. An Associate Professor of Gynaecology gave expert evidence to the Tribunal having reviewed the medical and other reports.
In addition, the Tribunal also received and provided to all the parties a summary of the medical reports and chronology of the represented person's presentations and admissions to hospital, and a graphical representation of the client monitor reports provided by the coordinator of the residential care placement. The client monitor reports record the behaviour of the represented person in relation to her menstrual cycle and bowel motions and are completed by the direct carers. The report and graph were prepared, at the direction of the President, by Senior Sessional Member Dr A McCutcheon, a medical practitioner sitting as a member of the Tribunal to decide this application.

The mother states that the reports prepared by the member are an accurate representation of the chronology of the represented person's contact with health professionals.
At the hearing, oral evidence was received from the medical practitioners and from the carers and from the parents of the represented person, and the Tribunal was also assisted with further oral submissions from the Public Advocate and from the separate representative.

Background

The represented person is a young woman aged 22 years with an intellectual disability. At three months, she was diagnosed with a rare form of epilepsy and was prescribed Tegretol to control fitting.
Her mother reports that a consultant paediatrician described the represented person's functioning as that of a two-year-old child. She has no verbal language and does not use sign language consistently. Her mother and carers rely on interpretation of her "body language" in an effort to assess her needs and respond to them. She needs one-on-one assistance with feeding and with all of her activities of daily living. She is doubly incontinent, and adult nappies are used to manage this.
Up until puberty, her mother reports that she was a docile, happy child, but from age 12 or 13 years, her behaviours changed and she displayed agitated behaviours, including head banging, hand biting and crying. There were periods when she would go without sleep for several days. She frequently used repetitive behaviours such as screaming or pacing and banging objects. An instance was given when she broke windows by banging on them, on one occasion severely injuring her arm.
When she was 15 years of age, the represented person was admitted to hospital for several weeks under a psychiatrist for assessment of these behaviours. A number of medications were trialled in an effort to control the agitation.
Until she was aged 16 years, the represented person was in the sole care of her mother who also had another younger child, the brother of the represented person, in her care.
When the represented person was aged 16 years, she moved into the residential care placement in which she now lives. This accommodation service provides 24 hour care and supervision of the represented person through a roster of paid carers. The represented person shares the accommodation with two other young disabled people who also require significant care and supervision. The represented person's mother lives nearby, visits frequently and has her daughter home for periods during the day each weekend. The father has some contact with his daughter.
The represented person attends a day placement on Mondays, Wednesdays and Thursdays for recreation. Her favourite activity is said to be swimming but she also enjoys music and dancing, although she finds it very difficult at times to be in contact with groups of people. On the other days of the week, she will stay at the house. Sometimes she is taken by carers on outings to the local shops for coffee or window shopping. At other times, she remains at home in the garden using a swing or listening to music which she enjoys.
The represented person began menstruating when she was 16 and a half years old. Her periods were heavy and irregular, and she was seen by the consultant gynaecologist who prescribed the oral contraceptive pill to regularise the bleeding. The represented person suffered an adverse reaction to this and so other forms of menstrual management were tried.
At the time of the guardianship hearing, the represented person had been on Depo Provera, an injectable contraceptive, for two to three years, and the bleeding had been reduced to intermittent "spotting" throughout the month but had not been eliminated. The spotting or bleeding was said at the guardianship hearing by the mother and the coordinator of the residential placement and a worker from the day placement to interfere with the recreational activities of the represented person as she could not go swimming if spotting was detected.
Over a period of years, a number of medications have been tried to manage the agitation experienced by the represented person. Some alternate therapies were tried. Some medications had a positive short term effect; some had adverse effects. None appeared to have any significant impact on her level of agitation in the longer term.
In May 2004, the mother of the represented person applied to the Guardianship and Administration Board for her appointment as guardian.
The reason for the application was so that she could apply for consent for sterilisation of her daughter. She stated in her application that she believed her daughter's problems were related to her menstrual cycle and that there was a "family history of such problems". She had consulted gynaecologists about a procedure for sterilisation prior to the onset of the represented person's menstruation, and since had been advised that the consent of a court is required.
The application was adjourned so that the mother could obtain further medical evidence regarding the need for the proposed procedure and for investigation and report by the Public Advocate.
The jurisdiction and functions of the former Board were taken over by the State Administrative Tribunal from January 2005 following passage of the amendments to the GA Act and the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act2004 (WA).
In 2005, the represented person was seen by a consultant psychiatrist who introduced a range of medications to control agitation. When she first presented to the psychiatrist, the represented person is reported to have weighed 35 kilos and was seriously ill. Her weight loss was investigated and found to be a consequence of her extreme agitation.
By the time that the guardianship application came on for final hearing in May 2006, the behaviour and physical health of the represented person was reported to be more stable. She had gained weight and her agitation was reduced.
The mother's view as presented at the guardianship hearing is that the represented person's agitation was cyclic in nature and related to the menstrual cycle or the sensation of bleeding.
The psychiatrist who provided a report and gave evidence at the guardianship hearing, and later in respect of this sterilisation application, stated that she could not give a formal diagnosis of the condition of the represented person but that she had seen the condition before in patients with profound intellectual disability and it was characterised by extreme agitation.
She stated that she had attempted to settle the distressed and agitated behaviour of the represented person and had introduced a range of medications.
The psychiatrist reported that she had last seen the represented person in July 2005, and she had understood the behaviours to have settled and the carers of the represented person would contact her should there need to be a further modification of the medication prescribed.
She stated that, in her opinion, the represented person would continue to require psychiatric medication for her lifetime. She considered that the behaviour was not entirely related to the menstruation and that if the psychiatric medications were withdrawn, the represented person's behaviour would return to the previous behaviours.
The clinical psychologist who assessed the behaviour and reported to the Tribunal of the represented person in 2005 did not observe the behaviours which had previously been reported.
The consultant gynaecologist who gave evidence at the guardianship hearing (and later in respect of this application) stated that the menstrual cycle of the represented person was suppressed and bleeding reduced, but that she supported the elimination of all bleeding based on the reports of the mother and carers that bleeding was associated with deterioration in the behaviour of represented person.

Current application

In the current application, the mother as guardian of the represented person seeks consent for a laparoscopic hysterectomy. The particular procedure proposed is the removal of the uterus and cervix of the represented person. It is not intended that her ovaries be removed.
The mother states that the need for the procedure is for the long term comfort of the represented person, for safety reasons and the prevention of pregnancy and for reasons of hygiene. She is also concerned about the long term use of the range of medications taken by the represented person and submits that if a hysterectomy were performed, some of these medications could be withdrawn.
The mother agrees that since the introduction of the medications by the psychiatrist in 2005, there has been an improvement in the agitation and disturbed behaviour of the represented person, and the mother does not now press this as the primary reason in support of her application for consent for sterilisation of the represented person.

Behavioural issues - Pain management

In respect of the behaviours of the represented person, the mother accepts that the graphical representation of the behavioural charts does not show a unique relationship between the agitation and menstruation. The charts show that agitation can occur in the absence of menstruation and menstruation can occur without agitation.
The mother does maintain, however, and this was supported by the direct carer at the hearing, that some behaviours remain related to the menstrual cycle. The mother states that the represented person experiences some days where she "drools" and manifests agitated behaviour. At times, the represented person walks "hunched over" which the mother believes may be associated with either cramping or some type of abdominal discomfort. As the represented person cannot communicate, the mother and her carers are reliant on her body language to try to gauge what is wrong and to attempt to alleviate her discomfort. In addition, the mother states that while she is very happy at the moment with the represented person's behaviour, there are no guarantees that this is a permanent change.
According to the coordinator of the residential service and a direct carer of the represented person, the medications prescribed by the psychiatrist have, for the most part, settled the agitation of the represented person to the extent that she is now able to be redirected from agitated or pacing behaviour, has periods of calm and she is now said to be well managed by her carers with little need for additional calmative medications, even at night. This calmative medication is only given with the coordinator's direct approval and it has not been used recently.
The improvement in the behaviour of the represented person over a period of eight to nine months is confirmed by the represented person's general practitioner who now supervises her medical care and prescribes the medications.
The clinical psychologist who had assessed the behaviour of the represented person and the behaviour management techniques employed in her care at the request of the Public Advocate, prior to the guardianship hearing, states that she assessed the represented person over 13 hours in different settings in 2005 but had not observed the highly agitated behaviour for long periods which had been reported previously by other psychologists. She notes that the care and management techniques employed by the mother and carers were effective in minimising the behaviour problems that she did observe, which had occurred primarily around food.
The clinical psychologist states that the represented person has "a vulnerable brain" and that it appears to her that the medications have been effective in reducing agitation and that she suspects that there is some internal reason, either physical distress or neurological cause rather than environmental cause, for the agitation of the represented person. This is in light of the neuroleptics (the medications) working to reduce the agitation. She agrees the agitation could be in response to pain or something else, such as some form of brain activity, or associated with the bowel movements of the represented person.
The consultant psychiatrist in her oral evidence confirms the medications she prescribed in 2005, which are still in use for the represented person, as: Tegretol (200 milligrams in the morning, 400 milligrams at night); Seroquel (400 milligrams in the morning, 500 milligrams at midday and 1000 milligrams at night); and Diazepam (10 milligrams three times per day). In her view, it is highly likely, given the history, that the represented person will continue to have episodal agitated behaviour in the future. Although she agrees medications could be reduced, there may be subsequent deterioration in the mental state of the represented person if this is done.
The consultant psychiatrist states there are various possibilities to account for the explanation of the behaviour of the represented person. One possibility is that it is due to abdominal pain and menstruation. In her view, some of the behavioural problems may be related to an epileptic form of activity in the represented person's brain.
In the psychiatrist's opinion, from a review of the behavioural charts, there appeared to be very little connection between the agitation and the menstruation of the represented person. She could not say there was any direct relationship between the mental state of the represented person and her menstrual cycle. As such, even if a sterilisation procedure occurred, there would be no change in the psychiatric medications prescribed.

Contraception

Although the represented person experiences intermittent spotting, both gynaecologists agree in their oral evidence before the Tribunal that because the bleeding is minimal, the combination of contraceptives (Depo Provera and Premarin) means that the represented person has effective contraception despite the action of Tegretol which can sometimes reduce the effectiveness of hormonal contraceptives. Both agreed, though, that no contraceptive can be considered to be 100% effective.

Bleeding

The mother considers that a hysterectomy would eliminate the need for additional pads used by the represented person with her nappy when she is menstruating.
The Tribunal heard at the guardianship hearing that the represented person is not aware of or distressed by the sight of menstrual blood.
The coordinator of the residential placement states that the represented person's last menstrual bleed of any significance was towards the end of last year when there had been bleeding for 3 - 4 days. Her evidence is that, on that occasion, an additional pad was not required. It is understood that the represented person's bleeding is now reduced to spotting and that pads for menstrual blood are used now only as needed.
The consultant gynaecologist who has treated the represented person in the past but has not seen her for some time states that the plan had always been to try to eliminate the bleeding because of the difficulty the represented person experienced behaviourally, and with hygiene and with her quality of life, such as the interference with her swimming when she was menstruating. However, she states that if non-surgical ways of dealing with the problem are effective, then surgery would not be considered.
In respect of the interference with the represented person's swimming, which is a recreation she particularly enjoys, the evidence from the day placement coordinator referring to the client records maintained by the service is that the represented person has not been excluded from swimming for a period of eight months.
It is noted in early reports that the represented person did not participate in swimming because of agitation and on other occasions because of her own refusal. The mother disputes this evidence and maintains that it is likely that the represented person was seen to be spotting, and excluded from swimming for this reason, during this time. The Tribunal accept that the records may not be complete; however, the overall impression the Tribunal gained from the evidence of all of those involved in the represented person's care is that spotting has not interfered with her activities as it once did.
An alternative to the current medications is Myrena, a hormone producing intrauterine device which the Associate Professor of Gynaecology states maintains very low levels of bleeding or occasional spotting which is well managed with nappies. She states that, if the current medications are working, there is no reason to change, but that either the Myrena or the existing medications would seem to be a less invasive way of managing these issues for the represented person than a sterilisation procedure.

Hygiene

The hygiene of the represented person is advanced by the mother as an additional reason for her need for a hysterectomy.
The Tribunal heard at the guardianship hearing that the represented person is not aware of her incontinence and is not embarrassed or distressed by it. Her mother states that she is accustomed to nappies, but when she does have a menstrual cycle, an extra pad is used and the represented person needs more attention.
The mother states that when out on an excursion, it may be one or two hours or longer that the represented person goes without a change of nappy. She also states that when the staff are busy, the represented person may go several hours without a change, and this can cause rashes and unpleasant odours and chafing if the represented person has had to wear double pads. The mother concedes that this is not always related to her menstrual cycle.

Safety Issues – Risk of pregnancy

In respect of the safety issues the mother raises in the application, this is understood to be the vulnerability of the represented person to sexual assault and the consequences of pregnancy which may result.
At the present time, the represented person has 24 hour care at her residential placement and one-on-one supervision at her daytime placement. At times she is alone with a male carer at the residential placement, or travelling in a carer's vehicle. The mother expresses her satisfaction with the current carers and arrangements, but states that these arrangements may change in the future. She states that the represented person is vulnerable because of her inability to communicate, together with her inability to discriminate between people who care for her and people who may have ulterior motives.
The separate representative submits that there are no perceived safety issues and no threat - actual or real - perceived, in the day to day care of the represented person despite her living with two males and being cared for by male carers.
The Public Advocate submits that there is always some degree of risk of exploitation of such a vulnerable person but that a hysterectomy cannot provide for her safety. Reduction of risk can only occur through close supervision of the represented person, which it is submitted is currently in place.

Risks – Long term use of medication risk of sterilisation procedure

The mother also expresses concern about the long term use of various medications for the represented person and states that, if a hysterectomy were performed, some of the medications might be withdrawn.
The gynaecologists agreed that the contraceptives and Ponstan, which is used intermittently for pain relief, could be stopped. According to the Associate Professor, the remainder of the medications are very likely to remain completely unchanged. This is consistent with the evidence of the psychiatrist about the long term need for the medications she prescribed.
The evidence of the gynaecologists is that the risk of osteoporosis, which could be associated with the long term use of Depo Provera, is reduced because the represented person is mobile, has regular exercise from walking, has adequate nutrition and receives oestrogen - important for protection from bone loss - through Premarin. Bone density tests were recommended by the gynaecologist after five years of Depo Provera use.

The psychiatrist notes in her evidence the possible effect on liver function of long term Tegretol use and recommends six-monthly liver function tests be performed on the represented person.
She also states that the use of Seroquel has the potential risk of tardive dyskinesia (involuntary movements), although this side effect is rare with this type of antipsychotic. In her evidence, the psychiatrist notes that, if the represented person discontinues the medication, there is a risk that she will become unstable again. She said there was no easy answer. In her view, there is no alternative to taking medication; no alternative to treatment.
In respect of the risks associated with the sterilisation procedure, the gynaecologist states that the procedure proposed is a laparoscopic hysterectomy which has statistically higher risk than other abdominal hysterectomies. With an expert specialist undertaking the procedure, the risk is approximately the same as that of abdominal hysterectomy.
The Associate Professor agreed that surgery is relatively safe, but that there is always the potential for problems with surgery, and she notes that gynaecologists are responsible for bowel adhesion problems and abrasions - of anywhere between 1% and 3% - of women who have hysterectomies. This means, in her view, that there is the possibility of generating another significant problem without necessarily offering the represented person anything more than what she is getting at the moment, which is minimal bleeding with good contraception.

Findings

Having considered all the written and oral evidence, the Tribunal makes the following findings.

Capacity

Based on the medical reports and the evidence of her mother and carers, the Tribunal is satisfied that the represented person is not capable of making reasonable judgments in respect of matters relating to her person and will not become so in the future. She will remain a person incapable of making any decisions of a medical nature or giving consent to treatment.

The wishes of the represented person

We accept, based on the evidence of her mother and the coordinator of residential service, that it is not possible to ascertain the wishes of the represented person in respect of this application, or in relation to any other matter of any complexity, because of the nature of her intellectual disability and her inability to communicate.

The circumstances of the represented person

Considering the evidence we have heard in light of the factors identified in Re Jane:
•Based on the evidence of the gynaecologists that the represented person has effective contraception, it is remote but not impossible that she could become pregnant.
•Given the evidence of her extreme sensitivity, intellectual disability and inability to communicate, we consider that it is highly likely that she would be traumatised by pregnancy and childbirth. Equally, she may be traumatised by the procedures associated with sterilisation including hospitalisation, surgery and recovery.
•The nature of the represented person's intellectual disability means that she will never be able to consent to voluntary sexual activity. We accept the submissions of the Public Advocate and the separate representative that, in light of the 24 hour supervision, there are no perceived risks of sexual assault in her present care arrangements, and the risk of sexual abuse of the represented person is low. However, her mother is correct in saying that this risk cannot ever be ruled out entirely, however unlikely the possibility.
•The represented person has a permanent intellectual disability and does not understand reproduction or contraception, and that is not likely to change.
•The contraception currently used is effective in providing contraception for the represented person and reducing menstrual bleeding to a minimum. The spotting which the represented person experiences is managed, for the most part, as part of the management of her incontinence through the use of adult nappies. In addition to the medications currently used, there is another less drastic means of controlling menstruation than a hysterectomy, by the use of a Myrena device, which the gynaecologists both agreed could be tried.
•The medical evidence provided by the psychiatrist, the general practitioner and the gynaecologists did not support the advisability of sterilisation in the current circumstances of the represented person, when her behaviour has improved significantly, she has effective contraception and her bleeding has been reduced to occasional spotting.
•The represented person is fully dependent on others for all her care needs. She could not care for a child.
•The evidence is that there has been a significant improvement in the represented person's condition since the application was initiated. The mother remains concerned about the permanence of the improvements achieved.
•The Tribunal is in no doubt that the mother, as the proponent of the sterilisation, is seeking consent in good faith and in the best interests of the represented person. She describes herself as unwavering in her view about the need for the sterilisation. The mother is unwavering in her commitment to the needs and interests of the represented person. Her devotion to her daughter and her wish that she not suffer any discomfort is apparent to the members of the Tribunal.
The inability of the represented person to communicate, other than on a most basic level, and the inability of those around her to understand and sometimes to respond effectively to her distress, has, we believe, driven her mother to make this application to ensure that she has done all she believes she can to respond to the needs of the represented person.
Because the mother maintains that there is some association between the menstrual cycle and the represented person's agitated behaviour, she asks that the Tribunal give consent to a hysterectomy which would permanently eliminate menstruation. The evidence from the health professionals and from the client records does not support this association.
The evidence is that the agitation displayed by the represented person has reduced significantly in response to the psychoactive medications which are prescribed and which it is likely the represented person will require in the longer term.
The current level of bleeding does not interfere in the life of the represented person to warrant an intrusive surgical procedure to be performed on her for the purposes of menstrual management. A hysterectomy will have no effect on her incontinence and its management.
The Tribunal acknowledges the mother's anxiety about the safety of the represented person. However, the Tribunal also accepts the assessment of the Public Advocate that a hysterectomy will not contribute to her safety, and it is only the continued close monitoring of the represented person by her carers and her mother that will protect her from the risk of sexual abuse.

Conclusion

Weighing up all the factors, including the effectiveness of the current less drastic form of contraception, which is a less restrictive alternative to the procedure proposed, and the unlikelihood of pregnancy against the factors advanced in support of the application of behaviour, menstrual and hygiene management, the Tribunal concludes that there is no compelling justification for a hysterectomy to be performed on the represented person. The proposed procedure is not necessary from a medical or behavioural point of view and cannot be justified for menstrual management.

Order

For these reasons, we have decided that the application should be dismissed.

I certify that this and the preceding [102] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUSTICE M L BARKER, PRESIDENT