Alice (a pseudonym)

[2024] NSWCATGD 29

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Alice (a pseudonym) [2024] NSWCATGD 29

Hearing dates:

10 December 2024

Date of orders:

10 December 2024

Decision date:

10 December 2024

Jurisdiction:

Guardianship Division

Before:

R H Booby, Principal Member
Dr B McPhee, Senior Member (Professional)
D R Sword, General Member (Community)

Decision:

Special Medical Treatment

The Tribunal consents to the following special medical treatment being provided to Alice:

hysterectomy by laparotomy under a general anaesthetic 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 four month(s) from the date of this order.

Guardianship

1. A guardianship order is made for Alice.

2. Rose, of [Address removed for publication.], is appointed as the guardian.

3. Charlie, of [Address removed for publication.], is appointed as the alternative guardian.

4. This is a continuing guardianship order for a period of 12 months from 10 December 2024.

5. This order will not be reviewed at the end of the above period.

6. This is a limited guardianship order giving the guardian(s) custody of Alice to the extent necessary to carry out the functions below.

FUNCTIONS: Rose

7. Rose has the following functions:

a) Health care

To decide what health care Alice may receive.

b) Medical/Dental consent

To make substitute decisions about proposed minor or major medical or dental treatment, where Alice is not capable of giving a valid consent.

CONDITION:

8. The condition of this order is:

a) Standard Condition

In exercising this role, the guardian shall take all reasonable steps to bring Alice to an understanding of the issues and to obtain and consider her views before making significant decisions.

Catchwords:

CONSENT TO MEDICAL TREATMENT – application for hysterectomy with retention of ovaries – 33-year-old woman with a large uterine fibroid – potential malignancy – proposed treatment is special medical treatment – treatment would render person infertile –whether person is able to consent to treatment – person has a general understanding of procedure but lacks depth – person incapable of giving consent – condition poses serious risk to person’s health – alternative strategies available but less suitable – consent to treatment provided – effective for a period of four months.

GUARDIANSHIP – application for a guardianship order for person – whether person is “in need of a guardian – satisfied that due to lifelong intellectual disability person is “in need of a guardian” – person also unable to obtain medical treatment without guardianship order - who should be the guardian – person’s mother meets the requirements to be appointed – person’s mother appointed for a period of 12 months.

Legislation Cited:

Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 14(2), 15(3), 17(1), 33(1)-(2), 33A(4), 36(1)(b), 42, 44, 45(2); Pt 5

Cases Cited:

IF v IG [2004] NSWADTAP 3

P v D1 [2011] NSWSC 257

W v G [2003] NSWSC 1170

ZKF v ZKG [2019] NSWCATAP 64

Texts Cited:

None cited.

Category:

Principal judgment

Parties:

001: Guardianship Application

Alice (the person)
Rose (applicant)
Charlie (joined party)
Public Guardian

002: Consent to Special Medical Treatment

Alice (the person)
Rose (applicant)
Charlie (joined party)

Representation:

P Im as separate representative for Alice

File Number(s):

NCAT 2024/00295734

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. Alice is 33 years old and lives with her mother, Rose and her father, Charlie, in Northwest Sydney, NSW.

2. On 9 August 2024, the Tribunal received an application from Rose seeking a guardianship order for Alice. On 30 September 2024, the Tribunal received an application from Rose seeking consent for medical treatment for Alice. The proposed treatment was a hysterectomy with retention of ovaries, for the purpose of removing a significantly enlarged uterine fibroid.

3. On 1 November 2024, the Tribunal ordered that Alice be separately represented. Peter Im was the separate representative.

SPECIAL MEDICAL CONSENT

The Hearing

4. Alice participated in the hearing along with her parents and Dr Z, Gynaecologist and Specialist Laparoscopic and Robotic Surgeon.

WHAT MUST BE PROVED?

5. Special medical treatment is defined in s 33(1) of the Guardianship Act1987 (NSW), as including:

33 Definitions

…

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 …

…

If a person is incapable of giving informed consent to special medical treatment, then only the Tribunal may provide consent: Guardianship Act, s 36(1)(b).

6. 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.

7. 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).

8. 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.

9. 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.

10. In summary, therefore, the issues for determination by the Tribunal are as follows:

1. Is the treatment proposed by the applicant “special medical treatment”?

2. Is Alice incapable of giving consent to the proposed special treatment?

3. Is the treatment necessary to save Alice’s life or is the treatment necessary to prevent serious damage to Alice’s health?

4. Is the proposed special treatment the most appropriate form of treatment for promoting and maintaining Alice’s health and well-being?

Is the proposed treatment ‘special treatment’?

11. In a Health Professional Report Form for Special Medical Treatment, Dr Z describes the procedure as a hysterectomy with retention of the ovaries. In a letter dated 1 February 2024 addressed to Dr Y at a medical centre, Dr Z indicates that as the treatment would render Alice infertile, consent would be required from the Tribunal if Alice were unable to provide her own consent.

12. Having regard to the nature of the proposed treatment and the opinion of Dr Z, we were satisfied that the treatment would render Alice permanently infertile.

Is Alice incapable of providing consent to the proposed treatment?

13. 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.

14. In her application for guardianship, Brena reports that Alice has an intellectual disability and that doctors have refused to treat Alice without the appointment of a guardian.

15. In her application for consent to medical treatment, Rose indicates her view that Alice is able to consent to the treatment having discussed the matter with her psychologist, Ms X.

16. We were provided with a number of reports compiled when Alice was a child. These reports include a diagnosis of microcephaly with developmental delay and seizures.

17. In a report dated 11 June 2024, Ms X indicates the following:

1. Alice has been diagnosed with a moderate intellectual disability as well as an expressive and receptive language disorder and epilepsy.

2. During sessions with Alice they discussed the need for the proposed procedure, the procedure itself, and post procedure issues. Alice understood why the procedure was required and expressed a willingness to undergo the procedure to reduce her pain. She asked if she would be “put to sleep” during the procedure and asked how painful the procedure would be and how long she would need to be in hospital. In a subsequent session after more than one month, Alice was able to describe the procedure and the reason it was needed, the difference in her body before and after the surgery and options if, in the future, she wanted to raise a child. She also discussed her chances of carrying a pregnancy to full term if she did not undergo the surgery as well as how the surgery would change her life.

3. Based on her sessions with Alice, Ms X considered it likely that Alice could consent to the procedure. However she discussed with Rose the advantages of obtaining a second opinion.

18. In a letter dated 6 June 2024 addressed to Dr Y, Dr Z states that he had advised Rose that a hysterectomy was the preferred treatment for Alice, but that, because of her intellectual disability, Alice was not able to consent to the treatment. As it would take time to finalise an application to the Tribunal, he had referred Alice to Dr W, an Interventional Radiologist, to consider uterine artery embolisation as a temporary measure. During the hearing, Rose said that Dr W had refused to make an appointment for Alice because Rose was not appointed as Alice’s guardian.

19. In a letter dated 7 November 2024 to the Tribunal, Dr Z comments that, given Alice’s intellectual disability “I suspect she has limited understanding of her condition and, therefore, she cannot provide informed consent”. However he notes that she had indicated that she would prefer a “definitive procedure such as a hysterectomy”.

20. During the hearing, Dr Z said that when he discussed the proposed procedure with Alice, she seemed to understand about the condition to be treated and some aspects of the procedure, but she lacked a depth of understanding.

21. During the hearing, Alice was able to describe the procedure in general terms. However her focus was on relief from the pain of the fibroid. Her description of the procedure itself was limited and she could not outline the risks of the procedure. She said that she thought she needed her mother to be her guardian to make difficult decisions for her.

22. Rose said that she believes that Alice is able to make her own medical decisions and that when the procedure has been outlined, she has understood what had been said, but she later forgets the detail.

23. Mr Im said that he considered it likely that Alice understands the general nature and effect of the treatment but was unable to understand some of its more complex aspects. He noted that as he was a male, Alice might not have felt able to discuss private medical details with him.

24. We were satisfied that Alice has some understanding of the procedure. However we noted that Dr Z and Dr W had not been willing to accept her consent to the proposed procedure or the proposed interim procedure. Despite the views expressed by Ms X we considered Alice’s understanding of the procedure to be lacking in detail.

25. We were satisfied, on balance, that Alice’s understanding of the nature and effect of the treatment was insufficient to provide consent to this procedure, involving, as it does, major surgery, significant post operative care needs and resultant infertility.

What is the particular condition of the patient that requires treatment?

26. In the Health Professional Report Form and letters to Dr Y and to the Tribunal, Dr Z describes a fibroid measuring 131mm by 121mm that was causing Alice to have dysmenorrhea with heavy menstrual bleeding and anemia. He also notes that enlarged fibroids cause pressure on internal organs resulting in bowel and bladder dysfunction including obstructed voiding and urinary retention, and that Alice experiences urinary difficulty with occasional incontinence.

27. In a letter to the Tribunal dated 13 November 2024 Dr Y, Alice’s GP, describes Alice as having severe dysmenorrhea and an iron deficiency requiring iron infusions, as well as nocturnal urinary frequency due to pressure from the fibroid.

28. The results of an ultrasound performed on 14 November 2024 indicate that Alice’s uterus was markedly enlarged as the result of a fibroid measuring 195mm x 145mm x 137mm that had increased in size since January 2024.

29. Dr Z commented that the changes indicated by the MRI raised a question of malignancy that, whilst unlikely, could not be discounted and could not be assessed pre-operatively.

Why is it proposed that the treatment should be carried out?

30. Dr Z indicated that the treatment was the most appropriate treatment to remove the fibroid and resultant pain, pressure on organs and excessive bleeding, as well as to minimise the risk resulting from the possibility that the fibroid was cancerous.

What are the alternative options for treatment that are available?

31. Dr Z advised the following:

1. Alice has been started on progesterone to manage bleeding. Medical and hormonal treatments such as progesterone could assist to manage some of the symptoms of Alice’s condition, but the symptoms would re-emerge if treatment was discontinued. Those methods would also be ineffective in treating the effects of pressure exerted by the fibroid on internal organs. In addition, some of these medications are known to adversely affect bone density.

2. As an interim measure he had suggested uterine artery embolisation that could assist to reduce the symptoms and would be of assistance for the later surgery. Embolisation would reduce the size of the fibroids but was not an ideal treatment where there was a risk of cancer. (As noted above, Dr W had refused to make an appointment for Alice to discuss this proposal).

3. Endometrial ablation could also reduce the bleeding but due to the enlargement of Alice’s uterus this was not a preferred procedure.

4. Myomectomy would remove the fibroid whilst leaving the uterus intact. However this was not advisable due to Alice’s enlarged uterus and because of the possibility that the fibroid could be cancerous. If that were the case, myomectomy would risk dissemination of the cancer cells and would not prevent regrowth within the uterus.

32. Dr Z explained that there are three main surgical approaches to hysterectomies, being vaginal, abdominal (laparotomy) and laparoscopic. In Alice’s case, the fibroid is too large to allow a vaginal procedure. A laparoscopic hysterectomy involving keyhole surgery is sometimes possible but is not appropriate for Alice’s condition because the fibroid would need to be cut into smaller pieces for removal and this would increase the risk of spread of possibly cancerous cells. Dr Z advised that in Alice’s case the appropriate procedure was a laparotomy by way of a surgical incision into the abdominal cavity.

33. Mr Im submitted that having regard to the views and information provided by Dr Z, alternative treatments were not appropriate and that the proposed treatment was the most appropriate treatment for Alice’s condition.

34. We accepted and placed weight on the views of Dr Z as a specialist practitioner and we were satisfied on his evidence that alternative treatments had been considered and were not appropriate to Alice’s circumstances.

Are there any risks associated with the proposed treatment?

35. Dr Z referred to risks including pain, bleeding, infection possible damage to surrounding organs and the usual risks of a general anesthetic.

36. We are satisfied that the risks of the procedure are not greater than is reasonable having regard to Alice’s diagnosed condition and the effects of the fibroid and its increase in size and the possibility that it could be cancerous.

Is the proposed treatment necessary to save the patient’s life or prevent serious damage to health and how will the proposed treatment promote and maintain the patient’s health and wellbeing?

37. Mr Im submitted that the medical evidence clearly indicated that the proposed treatment was necessary to prevent serious damage to Alice’s health and to promote and maintain her health and welfare. He also submitted that consent to the treatment was appropriate, having regard to the objects of Pt 5 of the Guardianship Act, including that people are not deprived of necessary treatment merely because they lack the ability to consent to the treatment.

38. We are satisfied that if the fibroid is cancerous, its removal and the removal of the uterus is required to prevent growth and would therefore be lifesaving.

39. We are also satisfied that even if the fibroid is not cancerous, its removal is necessary to prevent serious damage to Alice’s health that results from dysmenorrhea with heavy bleeding and anemia and to relieve pressure on Alice’s organs with resultant bowel and bladder issues. We are satisfied that alternative methods of performing a hysterectomy are inappropriate and that in the case of Alice, the procedure needs to be by way of a laparotomy.

Consent to treatment

40. Having reached the decisions noted above, we consented to the hysterectomy by laparotomy under a general anaesthetic and any necessary treatment that would normally be provided in association with or directly consequent upon the above treatment.

41. In response to a question as to when the surgery might be conducted having regard to public hospital operating schedules, Dr Z indicated that it was unlikely that the condition would be triaged as one requiring surgery within 30 days but was hopeful that it would be assessed as requiring treatment within three months. Accordingly, we made the consent effective for a period of four month(s) from the date of this order.

GUARDIANSHIP APPLICATION

What did we have to decide?

42. The questions we must decide are:

1. Is Alice someone for whom we could make an order because [she] is a “person in need of a guardian”?

2. Should we make a guardianship order?

3. If so:

1. what functions should the guardian be given?

2. who should be the guardian?

3. how long should the order last?

Is Alice a ‘person in need of a guardian’?

43. Section 14 of the Guardianship Act provides that the Tribunal may make a guardianship order for a person if it is satisfied that [she] is “a person in need of a guardian”.

44. A person in need of a guardian is “a person who because of a disability is totally or partially incapable of managing his or her person”: Guardianship Act, s 3(1).

45. Section 3(2) of the Guardianship Act defines a person with a disability as a person who is:

1. intellectually, physically, psychologically or sensorily disabled;

2. of advanced age;

3. a mentally ill person within the meaning of the Mental Health Act 2007 (NSW); or

4. otherwise disabled;

and by virtue of that fact is restricted in one or more major life activities to such an extent that he or she requires supervision or social habilitation (i.e. services to be able to function in the community).

Consideration

46. We accepted the medical evidence outlined in the section of these Reasons dealing with the application for consent to special medical treatment and we are satisfied that Alice has a lifelong intellectual disability and as a result she is not able to manage her self-care or to make important complex decisions about her medical treatment. We are satisfied that as a result she is at least partially unable to manage her person.

Should we make a guardianship order?

47. In deciding whether to make, or not to make, a guardianship order, we must consider each of the matters set out in s 14(2) of the Guardianship Act:

1. the views (if any) of:

1. the person, and

2. the person’s spouse, and

3. the person’s carer, and

2. the importance of preserving the person’s existing family relationships, and

3. the importance of preserving the person’s particular cultural and linguistic environments, and

4. the practicability of services being provided to the person without the need for the making of such an order.

48. The decision to make or to decline to make a guardianship order under s 14 of the Guardianship Act is a discretionary one, informed by the mandatory considerations listed in s 14(2) of that Act and the general principles set out in s 4 of that Act: IF v IG [2004] NSWADTAP 3 at [36]. The matters set out in s 14(2) of the Guardianship Act have no hierarchy or weighting: IF v IG at [34]. We are not limited to considering those matters: IF v IG at [27].

49. Section 4 of the Guardianship Act provides that, in exercising functions under that Act with respect to people who have disabilities, we must observe the following principles:

1. the welfare and interests of such persons should be given paramount consideration;

2. the freedom of decision and freedom of action of such persons should be restricted as little as possible;

3. such persons should be encouraged, as far as possible, to live a normal life in the community;

4. the views of such persons in relation to the exercise of those functions should be taken into consideration;

5. the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised;

6. such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs;

7. such persons should be protected from neglect, abuse and exploitation;

8. the community should be encouraged to apply and promote these principles.

The views of the subject person

50. Alice told us that she wanted her mother to make decisions that she is not able to make for herself.

The views of the carer

51. Rose said that she accompanies Alice to her medical appointments and consults with her doctors and allied health practitioners. She said that she consented to Ms X conducting the assessment of Alice’s ability to consent to the proposed special medical treatment.

52. As is indicated in the section of these Reasons dealing with the consent for special medical treatment, Rose said that despite a referral from Dr Z, Dr W refused to make an appointment for Alice because she lacked a guardian.

The importance of preserving the person’s existing family relationships and particular cultural and linguistic environments

53. In her report, Ms X speaks of the closeness between Rose and Alice. We accept that evidence which is consistent with the views of Alice and her mother. On the basis of this evidence, we are satisfied that making a guardianship order appointing Rose as the guardian would not adversely affect Alice’s family relationships or cultural and linguistic environment.

The practicality of services being provided without a guardianship order

54. Section 33A(4) of the Guardianship Act establishes that a person who provides care and support for a person with a disability is a ‘person responsible’ who is able to provide substitute consent for medical treatment of a person unable to provide his or her own consent. Rose would appear to be a ‘person responsible’ for Alice. However as noted above, Rose told us that her status as a substitute medical decision-maker for Alice was not recognised by Dr W, a specialist practitioner to whom Alice had been referred. We are satisfied that despite the provisions of s 33A(4) of the Guardianship Act it has not been practical for Alice to receive medical services that she requires in the absence of a guardianship order. Having regard to this matter we are satisfied that there is a need to appoint a guardian to provide or refuse consent to medical treatment for Alice. As that decision-maker requires access to health care information about Alice and may need to transmit that information to medical and allied health practitioners, we are satisfied that the guardian should also be provided with a health care function.

Who should be the guardian?

55. Rose proposes that she be appointed as the guardian. To appoint Rose, we must be satisfied that she meets the requirements of s 17(1) of the Guardianship Act. She must:

1. have a personality generally compatible with the personality of the Alice;

2. have no undue conflict of interest (particularly financial) between their interest and those of the Alice; and

3. be able and willing to exercise the functions of the order.

56. In deciding whether a person is able to undertake the role of guardian, we must consider whether the proposed guardian is able, having regard to the circumstances, to exercise the functions in accordance with the principles set out in s 4 of the Guardianship Act: ZKF v ZKG [2019] NSWCATAP 64 at [31]. In P v D1 [2011] NSWSC 257 at [105]-[107], the Supreme Court noted the importance of the proposed guardian being able to demonstrate insight and explain plans for how to act as guardian objectively and without conflict of interest.

57. The Public Guardian cannot be appointed as a person’s guardian if there is an individual who can be appointed: Guardianship Act, s 15(3). Commenting on that provision, in W v G [2003] NSWSC 1170 at [25], the Supreme Court said:

“[T]he proper meaning to be given to the section is to read it as saying that the Public Guardian should not be appointed in circumstances in which an order can properly be made in favour of another person. That requires not only that the person be willing, reliable and responsible, but that the appointment will result in the policy considerations and principles set forth in the Act being given effect.”

58. We were satisfied that Rose understands Alice’s needs and is ready and able to make the decisions set out in the order. There was no evidence of any conflict of interest between Rose and Alice and no evidence of any lack of compatibility in their personalities. We were satisfied that Rose meets the requirements to be appointed as the private guardian for Alice.

How long should the order last?

59. An initial guardianship order can be made for a period of up to one year. We made the order for 12 months. Upon review, the ongoing need for the order will be considered.

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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

Decision last updated: 10 September 2025